SCMR 2011 Judgments - Pakistan Legal Archive

Supreme Court

SCMR 2011 SUPREME COURT 1 #

2011 S C M R 1

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ

GOVERNMENT OF PAKISTAN through Director-General, Ministry of Interior, Islamabad and others---Appellants

Versus

FARHEEN RASHID---Respondent

Civil Appeal No.538 of 2009, decided on 26th May, 2009.

(On appeal from the judgment, dated 17-11-2008 passed by the Federal Service Tribunal, Islamabad in Appeal No.961(R)(C.S.) of 2006).

(a) Constitution of Pakistan---

----Art. 212(3)---Leave to appeal was granted by Supreme Court to consider; whether reasons advanced by Service Tribunal in converting dismissal of service into minor penalty of stoppage of two increments for a period of two years was justified under facts and circumstances of the case in view of allegations that she on having found wallet of complainant did not immediately report about the incident to shift and arrival incharge, rather kept the wallet for several hours though complainant right after losing his wallet had come over to her counter several times but she did not bother to inform him of finding the wallet.

(b) General Clauses Act (X of 1897)---

----S. 24-A---Speaking order-Public functionaries are bound to decide cases of their subordinates after application of mind with cogent reasons within reasonable time.

Messrs Airport Support Services' case 1998 SCMR 2268; Aslam Warraich's case 1991 SCMR 2330 and Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173 rel.

----S. 5---Service Tribunal, duty of---Scope---Service Tribunal is obliged to decide appeal of civil servant after application of mind with reasons.

Gouranga Mohan Sikdar's case PLD 1970 SC 158 rel.

(d) Constitution of Pakistan---

----Arts. 4 & 5---Protection of law---Scope---Every citizen has inalienable right to be treated in accordance with law as envisaged by Art. 4 of the Constitution---Public functionaries are obliged to act within four corners of mandate of Constitution and Law---Even Chief Executive of Country is not above the Constitution and is bound to obey command of Constitution as envisaged under Art.5(2) of the Constitution.

Ch. Zahur Illahi's case PLD 1975 SC 383 and Zahid Akhtar's case PLD 1955 SC 530 rel.

(e) Constitution of Pakistan---

----Art. 4---"Law"---Connotation---Word "law" used in Constitution includes all such principles as having binding force on account of moral, customary or other sociological reasons.

Begum Agha Abdul Karim Shorish Kashmiri's case PLD 1969 SC 14 rel.

(f) Service Tribunals Act (LXX of 1973)---

---Ss. 4 & 5---Constitution of Pakistan, Art.212(3)---Convertion of penalty---Service Tribunal, jurisdiction of---Charge-sheet---Object and scope---Major penalty of dismissal from service was converted by Service Tribunal into minor penalty of stoppage of annual increments for a period of two years without cumulative effect---Authorities contended that as civil servant committed theft, therefore, criminal case should have been registered against her---Plea raised by civil servant was that no such allegation was made in charge sheet by the authorities---Validity---Charge sheet was precise formulation of specific accusation made against a person who was entitled to know its nature at, early stage---Object of charge-sheet was to tell accused as precisely or/and concisely as possible the matter in which civil servant was charged and must convey her with sufficient clearances and certainty what department intended to prove against her and of which she would have to clear herself during disciplinary proceedings---Service Tribunal did not advert to contents of charge-sheet, show-cause notice, inquiry report and dismissal order as Inquiry Officer recommended for registration of criminal case against civil servant with regard to recovery of stolen amount of complainant from her---Contents of charge-sheet and show-cause notice did not contain such allegations---Service Tribunal had ample power to convert major penalty into minor penalty subject to record reasons for the same---Supreme Court declined to interfere in judgment passed by Service Tribunal as authorities failed to raise , any substantial question of public importance as contemplated under Art.212(3) of the Constitution---Leave to appeal was refused.

Ghulam Mohi-ud-Din's case PLD 1964 SC 829; Zulfiqar Ali's case PLD 1988 SC 693; Muhammad Idrees Khan's case 2006 SCMR 104 and Akif Javed's case 2005 SCMR 752 rel.

(g) Constitution of Pakistan---

----Art. 212(3)---Appeal to Supreme Court---Substituting findings of fact---Scope---Supreme Court while exercising power under Art.212(3) of the Constitution, has no jurisdiction to substitute its own finding in place of finding of Service Tribunal below.

Khan Dil Muhammad Alizai, Deputy Attorney-General for Appellants.

Respondent in person.

SCMR 2011 SUPREME COURT 8 #

2011 S C M R 8

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Sair Ali and Anwar Zaheer Jamalis, JJ

MUHAMMAD ISLAM-Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, ISLAMABAD and others---Respondents

Civil Petition No. 69 of 2010, decided on 13th July, 2010.

(On appeal from the order dated 2-11-2009 passed by Federal Service Tribunal, Islamabad in Appeal No.462(R)/CS/2009).

(a) Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan, Art. 212(3)---Appeal---Limitation--Review before departmental authority---Appeal was dismissed by Service Tribunal on the ground of its being barred by limitation---Plea raised by civil servant was that a review petition was preferred by him which resulted in some delay---Validity---Such justification was made by civil servant in oblivion of the fact that no provisions regarding review was available and no review should have been filed---Departmental appeal filed by civil servant was barred by time ,and accordingly appeal preferred before Service Tribunal could not be held within time---Question of limitation was examined by Service Tribunal in accordance with law and no illegality or irregularity could be pointed out warranting interference in the order passed by Service Tribunal---Leave to appeal was refused.

Muhammad Sami v. Additional District Judge 2007 SCMR 621; NED University of Engineering and Technology v. Ashfaq Hussain Shah 2006 SCMR 453 and State Bank of Pakistan v. Khyber Zaman 2004 SCMR 1426 rel.

(b) Limitation---

----Question of limitation cannot be considered a "technicality" simpliciter as it has got its own significance and would have substantial bearing on merits of the case.

Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi PLD 1976 SC 258; S. Sharif Ahmad Hashmi v. Chairman, Screening Committee Lahore and another 1978 SCMR 367; Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC Pak 104; Punjab Province v. The Federation of Pakistan PLD 1956 FC 72; Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97; Chief Kwame Asante v. Chief Kwame Tawia PLD 1949 PC 45; Hussain Bakhsh and others v. Settlement Commissioner and another PLD 1969 Lah. 1039; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and other PLD 1975 SC 331; WAPDA v. Abdul Rashid Bhatti 1989 SCMR 467; Federation of Pakistan v. Muhammad Azim Khan 149 SCMR 1271; Inspector General of Police, Balochistan v. Jawad Haider and another 1987 SCMR 1606; WAPDA v. Aurangzeb 1988 SCMR 1354; Muhammad Naseem Sipra. v. Secretary, Government of Punjab 1989 SCMR 1149; Muhammad Ismail Memon v. Government of Sindh and another 1981 SCMR 244; Qazi Sardar Bahadar v. Secretary, Ministry of Health, Islamabad and others 1984 SCMR 177; Smith v. East Elloe Rural District Council and others 1956 AC 736; Province of East Pakistan and others v. Muhammad Abdu Miah PLD 1959 SC (Pak), 276; Mehr Muhammad Nawaz and others v. Government of the Punjab and others 1977 PLC (C.S.T.) 165 and Fazal Elahi Siddiqi v. Pakistan PLD 1990 SC 692 rel.

Mukhtar Ahmed Tarar, Advocate Supreme Court for Petitioner.

Mazhar Ali Chaudhry, Deputy Attorney-General and Javed Iqbal Khattak, SP, Legal for Respondents.

Date of hearing: 13th July, 2010.

SCMR 2011 SUPREME COURT 11 #

2011 S C M R 11

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Jawwad S. Khawaja, JJ

Messrs PAKISTAN SYNTHETICS LIMITED---Appellant

Versus

WAQAR AHMED and others---Respondents

Civil Appeals Nos. 65 to 87 of 2008, decided on 10th June, 2009.

(On appeal from the judgment dated 15-11-2007 passed by the High Court of Balochistan, Quetta, in Labour Appeals Nos. 27 to 49 of 2006).

(a) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

----Ss. 12 & 13---Constitution of Pakistan, Art.185 (3)---Leave to appeal was granted by Supreme Court to consider; whether employees' termination was simpliciter termination provided for under S.12(1) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, or it was retrenchment or downsizing under the provisions of S.13(2) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968; and whether High Court failed to appreciate that on account of strong international competition, employer company having suffered severe financial losses had to stop production of its main product thereby resorting to lay off in factory and action so taken was justified in the circumstances.

(b) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

----Ss. 12 & 13---Powers of employer---Scope---Employer has unfettered right to order his affairs for proper running of his establishment as long as the same is in conformity with Ss.12 and 13 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

----Manner of exercising of power in violation of law is also termed as mala fide.

Agha Shorish Kashmiri's case PLD 1969 SC 14 rel.

(d) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

----Ss. 12 & 13---Retrenchment or lay off---Economy measures---Proof---Services of employees were terminated due to downsizing for economy measures---Action taken by employer was maintained by Labour Court but High Court declared such termination as mala fide and set aside the same---Validity---Mode provided by law was to be strictly followed under mandatory provisions of Ss.12(3) and 13 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Retrenchment was to be in good faith/bona fide and not to victimize employees or as a cloak to get rid of employees---High Court was justified to go into the question to see bona fides of retrenchment and had rightly given a finding of fact that termination in question was mala fide and in colourable exercise of power, thus action was not taken by employer due to measure of economy---Employer failed to raise any substantial question of law of public importance---Jurisdiction of Supreme Court under Art. 185 (3) of the Constitution was discretionary in character and Supreme Court declined to exercise its discretion in favour of employer---Appeal was dismissed.

Nawabzada Raunaq Ali's case PLD 1973 SC 236 and Rana Arshad's case 1998 SCMR 1462 rel.

(e) Constitution of Pakistan---

----Art. 185(3)---Finding of fact---Interference by Supreme Court---Principles---Onus to prove---Scope---Supreme Court does not normally go beyond finding of fact recorded by High Court unless it can be shown that such finding is on the face of it against evidence or so patently improbable or perverse that to accept the same, it would amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of a principle relating to appreciation of evidence or finally if finding can be demonstrated to be physically impossible---Such is the practice and rule of Supreme Court in civil appeals and burden lies heavily on appellant to show that findings recorded by High Court are not sustainable on the record and should be interfered with by Supreme Court---While exercising power under Art.185(3) of the Constitution, Supreme Court has no jurisdiction to substitute its own finding in place of finding of High Court.

Kamran Murtaza, Advocate Supreme Court for Appellant.

Respondents ex parte.

Date of hearing: 10th June, 2009.

SCMR 2011 SUPREME COURT 21 #

2011 S C M R 21

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmed, JJ

MUHAMMAD SHARIF---Petitioner

Versus

CHIEF SECRETARY and another---Respondents

Civil Petition No.30-Q and Civil Appeal No. 53-Q of 2010, decided on 30th June, 2010.

(On appeal from the judgment dated 19-3-2010 passed by Balochistan Service Tribunal, Quetta in S.A.No. 59 of 2009).

Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979--

----R.12-A---Retirement age---Determination---Grievance of civil servant was that his date of retirement had wrongly been calculated from seniority list---Civil servant relied upon his date of birth mentioned in his Secondary School Certificate, Computerized National Identity Card and Service Book---Validity---Date of birth of civil servant mentioned in Service Book could not be ignored as it was the most authenticated document---Date of birth mentioned in seniority lists could not be ,referred over date of birth mentioned in Service Book--Supreme Court accepted the date of birth of civil servant mentioned in Secondary School Certificate, Computerized National Identity Card and Service Book---Supreme Court converted petition for leave to appeal into appeal and set aside notification of retirement of civil servant---Appeal was allowed.

Muhammad Riaz Ahmad, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Salahuddin Mengal, Advocate-General along with Iftikhar Ali, PDSP for Respondents.

Date of hearing: 30th June, 2010.

SCMR 2011 SUPREME COURT 23 #

2011 S C M R 23

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Khilji Aril Hussain and Asif Saeed Khan Khosa, JJ

ABDUL GHAFOOR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 448 of 2007, decided on 6th May, 2010.

(On appeal against the judgment dated 19-3-2007 passed by Lahore High Court, Rawalpindi Bench in Murder Reference 525 of 2000 and Criminal Appeal No. 235 of 2000).

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appraisal of evidence---Case remanded due to non-cross-examination on eye-witnesses---Both the eye-witnesses of the occurrence in the case were not cross-examined and High Court had blamed the accused for the same while confirming his death sentence---Primary responsibility of the court was to ensure that the truth was discovered and the accused was brought to justice---If counsel of accused was not appearing in court even after taking too many adjournments, Trial Court could either have provided him a defence counsel at State expense or given him last opportunity to make an alternate arrangement---Trial Court did not adopt the said course and instead gave a total surprise to accused by asking him to cross-examine the eye-witnesses himself for which obviously neither he had the requisite expertise, nor he was prepared to do so---Procedure adopted by Trial Court reflected miscarriage of justice---Conviction and sentence of accused were consequently set aside and the case was remitted to Trial Court to decide the same afresh after giving one opportunity to accused to cross-examine the two eye-witnesses---Appeal was disposed of accordingly.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Mian Asif Mumtaz, Deputy Prosecutor-General for the State.

SCMR 2011 SUPREME COURT 27 #

2011 S C M R 27

[Supreme Court of Pakistan]

Present: Zia Perwez, Sarmad Jalal Osmany and Sayed Zahid Hussain, JJ

MIR SAHIB JAN---Appellant

Versus

JANAN---Respondent

Civil Appeal No. 319 of 2009 in C.P.L.A. No.1540 of 2008, heard on 2nd June, 2009.

(Against the judgment dated 20-11-2008 of the High Court of Balochistan, Quetta passed in R.F.A. No.51 of 2007).

Per Zia Perwez, J, Sarmad Jalal Osmany, J agreeing. [Majority view]

(a) Administration of justice---

----Repetitive frivolous and fraudulent litigation after final adjudication of matter---Duty of court to take effective measures against obstinate litigants and their lawyers in such cases---Principles.

There is a growing tendency that even after final adjudication of the matter; parties indulge in abuse of the process of law by way of frivolous, repetitive and fraudulent litigation. An onerous duty is cast on those charged with the difficult task of administering justice to take effective measures against the obstinate litigants and their lawyers.

Bashir Ahmed v. Abdul Hameed 1984 SCMR 689; Abdul Hayee v. Sardar Muhammad 1984 SCMR 1149 and Jaliluddin v. H.B.L. and others 1985 SCMR 1965 rel.

Per Zahid Hussain, J contra. [Minority view]

(b) Specific Relief Act (I of 1877)---

----Ss. 8, 39, 42 & 54---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for declaration, possession, injunction and cancellation of fresh sale agreement---Dismissal of previous/first suit based on another agreement upheld upto Supreme Court---Rejection of plaint in second suit, application for---Defendant's plea was that plaintiff in second suit and earlier suit was not same person; and that second suit was not maintainable in view of previous litigation on same subject---Validity---Cause of action in second suit was based on a fresh agreement---Questions requiring determination were as to whether second suit had any nexus with first suit, and whether plaintiff was same person, who had been contesting previous proceedings---Such questions being questions of fact could adequately be resolved by granting opportunity to parties of producing evidence after framing necessary issues.

Jewan and 7 others v. Federation of Pakistan and 2 others 1994 SCMR 826 rel.

----O. VII, R.11---Object of provisions of O. VII, R.11, C.P.C. being to curb false and frivolous litigation at initial stage---Principles.

The prime object and purpose of establishment of courts is to dispense justice to the parties before it in accordance with law and discourage frivolous litigation. The philosophy behind the provisions of Order VII, Rule 11, C.P.C. i.e., rejection of the plaint at the initial stage, is based on the concept "nipping the evil in the bud before it surfaces." For the application of this golden rule, guiding principles have been laid down by the courts from time to time. False and frivolous litigation undoubtedly need to be curbed and stringent measures should be taken by the courts at all levels. To achieve this objective when necessary, the court should burden the party concerned with heavy costs. Such a step, however, ought to be taken when the court reaches the conclusion about the falsity of stance of a party. It will be dependent upon the facts and circumstances of each case.

Tariq Mehmood, Advocate Supreme Court for Appellant.

Raja Muhammad Afsar, Advocate Supreme Court for Respondent.

Date of hearing: 2nd June, 2009.

SCMR 2011 SUPREME COURT 34 #

2011 S C M R 34

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Nasir-ul-Mulk and Ch. Ijaz Ahmed, JJ

ABDUR REHMAN alias BOOTA and another---Appellants

Versus

THE STATE and another,--Respondents

Criminal Appeals Nos. 207 and 208 of 2007, decided on 22nd October, 2009.

(On appeal from the judgment dated 17-1-2007 passed by the Lahore High Court, Lahore, in Criminal Appeal No. 404 of 2002 and Murder Reference No. 176 of 2002).

(a) Penal Code (XLV of 1860)---

----S. 302(c)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Reasons weighed with High Court in discarding the ocular testimony required re-examination---Leave to appeal was granted to complainant by Supreme Court for the purpose.

(b) Penal Code (XLV of 1860)---

----S. 302(c)---Qatl-e-amd---Appraisal of evidence---High Court after having re-examined evidence on record had discarded the ocular testimony giving cogent reasons---Witness of the first occurrence, as mentioned and highlighted in the narration of facts, had not mentioned the names of eye-witnesses in her statement---Eye-witnesses being not present on the spot at the relevant time, their statements had been rightly ignored---Ocular evidence having been disbelieved, High Court was justified to alter the conviction of accused from S. 302(b), P.P.C. to S. 302(c), P.P.C. and reduce his sentence of death to 14 year's R.I., in terms of his statement recorded under S. 342, Cr.P.C.---Impugned judgment did not suffer from any illegality or infirmity---Appeal was dismissed accordingly.

Sattar Khan's case 1984 SCMR 678; Ghulam Qadir's case 1991 SCMR 61 and Faiz's case 1983 SCMR 76 ref.

----S. 342---Penal Code (XLV of 1860), S. 302(c)---Qatl-e-amd---Appreciation of evidence---Statement of accused, acceptance or rejection thereof---Principle---Statement of accused recorded under S.342, Cr. P. C. has to be accepted or rejected as a whole when entire prosecution evidence stands disbelieved.

Sattar Khan's case 1984 SCMR 678; Ghulam Qadir's case 1991 SCMR 61 and Faiz's case 1983 SCMR 76 ref.

Mian Aftab Farrukh, Advocate Supreme Court for Appellant (in Criminal Application No.207 of 2007).

Raja Abdur Rehman, Advocate Supreme Court for Appellant (in Criminal Appeal No. 208 of 2007).

Syed Ali Imran Shah, Deputy Prosecutor-General for the State.

Date of hearing: 22nd October, 2009.

SCMR 2011 SUPREME COURT 38 #

2011 S C M R 38

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Sair Ali and Tariq Parvez Khan, JJ

MUHAMMAD ZAHIR alias TIKO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.323 of 2004, decided on 18th August, 2010.

(On appeal from the judgment dated 13-8-2003 passed by the High Court of Balochistan, Quetta in Criminal Miscellaneous Application No. 786 of 2002 in Criminal Appeal No. 332 of 1998).

(a) Criminal Procedure Code (V of 1898)---

----S. 382-B---Penal Code (XLV of 1860), S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Leave to appeal was granted to consider whether in the facts and circumstances of the case, the accused was entitled to the grant of benefit of the provisions of S. 382-B, Cr.P.C. and whether the impugned judgment had proceeded on correct principles of law as enunciated by the Supreme Court.

Ghulam Muhammad v. The State 2001 SCMR 1987; Javed Iqbal v. The State 1998 SCMR 1539; Ghulam Murtaza v. The State PLD 1998 SC 152; Bashir alias Bashier Ahmed v. The State PLD 1998 SCMR 1794 and Muhammad Rafiq v. The State 1995 SCMR 1525 ref.

(b) Criminal Procedure Code (V of 1898)---

----S. 382-B---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Benefit of S. 382-B, Cr.P.C.---Scope and application---Question as to whether benefit of S. 382-B, Cr.P.C. can be extended in favour of an accused or otherwise squarely falls within the discretionary domain of a court, which is to be exercised judiciously on sound judicial principles---There is no bar whatsoever on extending such a benefit by a Revisional or Appellate Court, if omitted by Trial Court.

---S. 382-B---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Appreciation of evidence-Benefit of S. 382-B, Cr.P.C., refusal of,--Accused had killed two persons in a barbaric manner in the Holy month of Ramzan, 15 minutes prior to "aftari", when they were about to reach their homes---No leniency whatsoever was called for in favour of accused---High Court in declining the benefit of S. 382-B, Cr.P.C. to accused had exercised the discretion conferred upon it in a judicial manner---Impugned judgment being well based hardly warranted any interference---Appeal was dismissed accordingly.

Javed Iqbal v. The State 1998 SCMR 1539; Ghulam Murtaza v. the State PLD 1998 SC. 152; Bashir alias Bahier Ahmed v. The State PLD 1998 SCMR 1794; Asghar Ali v. State 1991 SCMR 151; Shahbaz Afghan v. State 1993 SCMR 224; Ehsan Ellahi v. Muhammad Arif 2001 SCMR 416; Mukhtaruddin v. The State 1997 SCMR 55 and Liaqat Ali v. The State PLD 1995 SC 485 ref.

M. Javed Aziz Sindhu, Advocate Supreme Court for Appellant.

Salahuddin Mengal, Advocate-General, Balochistan for the State.

Date of hearing: 21st April, 2010.

SCMR 2011 SUPREME COURT 45 #

2011 S C M R 45

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Rahmat Hussain Jafferi and Tariq Pervez Khan, JJ

MUSHTAQ HUSSAIN and another---Appellants

Versus

THE STATE---Respondents

Criminal Appeal No. 285 of 2009 out of Criminal Petition No. 286 of 2009, heard on 9th March, 2010.

(On appeal from the judgment dated 30-4-2009 of the Lahore High Court, Rawalpindi Bench passed in Criminal Appeal No. 504 of 2003).

Per Tariq Parvez Khan, J, [Majority view]

(a) Penal Code (XLV of 1860)---

---Ss. 324/334/337-F(iii)/337-T--- Constitution of Pakistan, Art.185(3)---Qatl-e-amd, attempt to commit qatl-e-amd, Itlaf-e-udw, ghayr jaifah, Arsh for fingers---Leave to appeal was granted by Supreme Court to reconsider the entire evidence.

(b) Penal Code (XLV of 1860)---

----Ss. 97/99/302/324/334/337-F (iii)/337-T---Qatl-e-amd, attempt to commit qatl-e-amd, Itlaf-e-udw, ghayr jaifah, Arsh for fingers---Reappraisal of evidence---Cross version case---Right of self defence---Non-raising of such plea---Duty of Court---Accused were convicted and sentenced to imprisonment by Trial Court, which was maintained by High Court---Trial Court acquitted complainant party and instead of holding any party as aggressor, declared the incident as of free fight---Validity---Accused if not had raised the plea of self-defence during trial either in his statement under S. 342, Cr.P.C. or at the time of cross-examination of prosecution witnesses, Court however, could infer the same from the evidence led during trial if it was tenable---As benefit of cross-version was given to accused of cross-case, same would be extendable to both the accused particularly when two eyewitnesses were injured but had charged the acquitted co-accused as well for causing injuries to them---Both the Courts below had found that there was a cross-case and no definite finding could be given about aggression made by both the accused, therefore, they were entitled to benefit of doubt---Convictions and sentences awarded to both the accused were set aside and they were acquitted of the charges---Appeal was allowed.

Ghulam Farid v. The State 2009 SCMR 929 rel.

Per Mian Shakirullah Jan, J. agreeing with Tariq Pervez Khan, J. [Majority view]

----Ss. 154, 161 & 162---Cross-version---Registration of F.I.R.---Principle---Whenever counter versions are received by police, separate F.I.R.s are chalked out---Police while treating written statement as part of earlier registered case by opposite side and not registering an independent case, becomes oblivion of the fact that the statement if so taken in a case, after registration of a case would be under S. 161, Cr.P.C. and which not to speak of a written statement, even prohibit signing of such a statement by the maker under S. 162, Cr.P.C. but in the present case, receipt of written statement is in violation of Ss. 161 and 162 Cr.P.C. which also seems to be in the handwriting of some police official by making comparison of written statement and signature on such a statement---Proper course is to register a separate case on the basis of such a written statement containing all necessary ingredients of F.I.R. i.e. time of report, time of occurrence, distance from police station and being read over to the maker and then getting his thumb impression or signature in token of its correctness and at the end the Karwai (proceedings) police with regard to necessary steps taken by Investigating Officer immediately after registration of case and then signature of scribe.

(d) Criminal, Procedure Code (V of 1898)---

----S.154---First Information Report---Object, purpose and scope---Purpose of F.I.R. is to set criminal law in motion and to obtain first hand spontaneous information of occurrence, in order to exclude possibility of fabrication of story or consultation or deliberation or complainant has time to devise or contrive anything to his advantage and to the disadvantage of others and to safeguard the accused of such like happenings occurrences in F.I.R.---Spontaneity of F.I.R. is the guarantee of truth to a greater extent.

Asal Muhammad and others v. The State PLD 1994 Pesh. 214 rel.

(e) Penal Code (XLV of 1860)---

----Ss. 302/324/334/337-F(iii)/337-T---Qatl-e-amd, attempt to commit qatl-e-amd, Itlaf-e-udw, ghayr jaifah, Arsh for fingers---Re-appraisal of evidence---Cross version case---Accused were convicted and sentenced to imprisonment by Trial Court, which was maintained by High Court---Trial Court acquitted the complainant party and instead of holding any party as aggressor, declared the incident as of free fight--Validity---Although prosecution witnesses were injured yet their credibility was shaken to hold their version unbelievable regarding other co-accused to whom similar role of effective firing was attributed by holding them innocent by Investigating Officer which view was upheld by the Court---Prosecution failed to prove its case beyond reasonable doubt and accused were acquitted of the charge---Appeal was allowed.

Per Rahmat Hussain Jafferi, J

(f) Penal Code (XLV of 1860)---

----Ss. 97 & 99---Right of self defence---Benefit---Scope---Preconditions---Such right can be extended not only to defence of one's own body against any offence affecting human body but can also be extended defending body of any other person---If accused wants to take benefit of exception of right of private defence, then he is required to show that he was not responsible or at fault or on account of his act the occurrence took place; that honestly believed that his life was under immediate danger; that also believed that there was no reasonable cause available to escape or avoid necessity; and that had no intention to cause more harm than necessary for the purpose---Whenever there is fight between parties, it is essential to determine as to which party was aggressor---Once it is clearly established that one of the parties started the attack, the other party would have a right to private defence.

(g) Penal Code (XLV of 1860)---

----Ss.97 & 99---Qanun-e-Shahadat (10 of 1984), Art. 117, 120 & 121---Right of private defence---Onus to prove--Shifting of onus---Principle---Before invoking the right of private defence, burden of proof is always on prosecution and it is only when a good prima facie case has been made out against accused sufficient to justify his conviction for that offence, then burden shifts upon the accused to prove that he is not guilty of any offence---For that accused must set forth the exact circumstances in which he acted that he was justified in what he did---Such shift of burden upon accused is not analogous to that of prosecution to establish the case beyond reasonable doubt but the test as to whether accused was entitled to the benefit of right of private defence is not whether he has proved the case beyond a reasonable doubt but whether in setting up any defence he has created a reasonable doubt in the case of prosecution and thereby earned his right of acquittal that can be done either leading evidence or through cross-examination of witnesses or from the prosecution evidence itself---Even then entire evidence is to be looked into and upon consideration of such evidence it is to be seen as to whether or not a reasonable doubt is created in the mind of the Court that accused is entitled to the benefit of private defence; upon answer of such question, plea of accused should be decided.

Wazid Moral v. State 1970 SCMR 256 rel.

(h) Administration of justice---

----Each case depends upon the facts and circumstances of that case and evidence produced by parties.

(i) Penal Code (XLV 1860)---

---Ss. 97, 99 & 302---Qatl-e-amd---Private defence, right of---Prosecution, duty of---Scope---Prosecution has to prove the case and then if Court finds that prosecution has proved the case, the defence plea taken by accused is to be examined and both versions are to be examined in juxtaposition so as to arrive at a proper conclusion.

(j) Penal Code (XLV of 1860)---

----Ss.97, 99 & 302---Qatl-e-amd---Private defence, right of--Contradictory pleas---Alibi and self defence---When accused admits that he was not present at the place of occurrence by taking the plea of alibi then he cannot claim right of private defence, as it is self destructive---Plea of right of private defence can be taken by a person who admits the act charged against him but pleads an excuse--If a person states that he did not do the act at all, it is difficult to see how at the same time the question of right of private defence would arise---Such fact by itself is sufficient to discard the plea of right of private defence.

Per Rehmat Hussain Jafferi, J [Minority view]

(k) Penal Code (XLV of 1860)---

----Ss.97 / 99/ 302 / 324 / 334 / 337-F (iii) / 337-T---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120--- Qatl-e-amd, attempt to commit qatl-eamd, Itlaf-e-udw, ghayr jaifah, Arsh for fingers---Re-appraisal of evidence---Right of self defence---Onus to prove---Accused were convicted and sentenced to imprisonment by Trial Court, which was maintained by High Court---Trial Court acquitted the complainant party and instead of holding any party as aggressor, declared the incident as of free fight---Accused raised the plea of self defence which resulted into causing injuries to prosecution witnesses---Validity---Burden was upon accused to prove that their case had come within the general exceptions of Penal Code, 1860 but no evidence was led or through cross examination any fact had been brought on the record to create a reasonable doubt upon prosecution story, therefore, accused failed to prove their plea---High Court had rightly appreciated the evidence and arrived at a right conclusion that accused party was aggressor---Accused had no right of private defence and they failed to prove their plea of alibi, therefore, conviction and sentence awarded to accused were maintained---Appeal was dismissed.

Per Rehmat Hussain Jafferi, J

(l) Criminal trial---

----Defect in investigation---Effect---If there is any discrepancy, irregularity or illegality in investigation, it can be cured after taking cognizance by Magistrate or Court as the case may be.

(m) Criminal Procedure Code (V of 1898)---

----S.154---Qanun-e-Shahadat (10 of 1984), Arts. 140 & 153---F.I.R.---Scope---F.I.R. carries great weight and play a pivotal role in criminal case before its maker is examined in Court---Once its maker is examined in Court, then F.I.R. loses its that much importance and is reduced to the position to the extent to be used only to corroborate as provided under Art. 153 of Qanun-e-Shahadat, 1984, or contradict its maker in the manner as required under Art. 140 of Qanun-e-Shahadat, 1984---F.I.R. is neither a substantial piece of evidence nor conviction can be based on it in absence of evidence of its maker in Court, thus no adverse inference can be taken in such case.

Talat Mehmood Zaidi, Advocate Supreme Court for Appellants.

Ch. Akhtar Ali, Advocate-on-Record and Syed Ali Imran, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 5th January, 2010.

SCMR 2011 SUPREME COURT 70 #

2011 S C M R 70

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Khilji Arif Hussain and Asif Saeed Khan Khosa, JJ

MUMTAZ ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 301 of 2004, decided on 10th June, 2010.

(On appeal from the judgment dated 23-5-2003 of the High Court of Sindh Circuit Court, Larkana passed in Criminal Application Nos. D-42 and 43 of 2002).

Penal Code (XLV of 1860)---

----Ss. 324 & 353---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, going armed without licence---Appraisal of evidence---Despite the occurrence having taken place at a public place and 48 shots having been fired by the police functionary in the alleged police encounter, nobody from public reached the spot---Neither the said police functionary nor the other prosecution witness had stated that the accused had fired at the police party---Although three accused had allegedly fired at the police party, yet neither any member of the police party had been injured, nor any bullet had hit the police vehicle---Consistent plea of the accused to have been injured during exchange of firing between two parties was never investigated, instead the complainant police officer had himself investigated the case---Non-production of medical evidence with regard to the injury of the accused was a serious infirmity in the prosecution case---Possibility could not be ruled out that either the deceased accused or the absconding accused might have fired at the raiding party---Accused was acquitted in circumstances.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Zafar Ahmed Khan, Additional Prosecutor-General Sindh for the State.

Date of hearing: 10th June, 2010.

SCMR 2011 SUPREME COURT 73 #

2011 S C M R 73

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, CJ., Tariq Parvez Khan and Ghulam Rabbani, JJ

SUO MOTU CASE NO.10 of 2010

Suo Motu Case No.10 of 2010, decided on 30th September, 2010.

(Contamination of Water of Mancher Lake due to Disposal Effluent from MNV Drain now converted into RBOD).

Constitution of Pakistan---

----Arts. 9 & 184 (3)---Constitutional jurisdiction---Suo motu powers---Right of life and liberty---Report was filed in Supreme Court alleging that contamination in Manchar lake had affected lives of fishermen and most of them moved to other places and government had failed to protect the lake, lives of fishermen, beauty of the lake and lands to the Abadgars---Chairman Water and Power Development Authority stated before Supreme Court that serious efforts were being made by Provincial and Federal Governments to ensure completion of project because of the importance of Mancher lake as well as to provide security to life and property of inhabitants living there for the last many years and earning their livelihood---On query by Supreme Court, the Chairman stated that Mancher lake was also source of income for fishermen---Effect---Serious steps had already been initiated and it was realized that fundamental rights of inhabitants were being protected for which Constitution had provided guarantee---Concerned authorities having initiated appropriate actions, no further proceedings were called for---Supreme Court directed Chairman Water and Power Development Authority and Provincial Government to submit joint report about progress in the matter on quarterly basis---Suo motu case was disposed of.

Shehla Zia and others v. WAPDA PLD 1994 SC 693 rel.

K. K. Agha, Additional AGP on Court's Notices.

Moazzam Ali Rizvi, Advocate Supreme Court, Mehr Khan Malik, Advocate-on-Record, Shakil Durrani, Chairman, WAPDA, Syed Raghib Abbas Shah, Member, WAPDA and Aftab Khan, Dir. (Litigation) for WAPDA.

Raja Abdul Ghafoor, Advocate Supreme Court/Advocate-on-Record and Aslam Ansari, Superintending Engineer, RBOD for Government of Sindh.

SCMR 2011 SUPREME COURT 79 #

2011 S C M R 79

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed and Anwar Zaheer Jamali, JJ

MUHAMMAD AMIN---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 776 of 2009, decided on 21st April, 2010.

(On appeal from the judgment dated 21-7-2009 of the Lahore High Court, Lahore passed in Criminal Appeal No. 367 of 2004 and Murder Reference No. 441 of 2004).

Penal Code (XLV of 1860)---

---S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Leave to appeal was granted by Supreme Court to consider the question as to whether death sentence awarded to accused by Trial Court and confirmed by High Court was justified in view of the compromise by one of the legal heirs of the deceased with the accused.

Abdul Rasheed and another v. The State Criminal M.A. No. 86 of 2007 in JP No. 509 and Criminal Appeal No. 255 of 2007 in JP No.100 of 2006 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Syed Ali Imran, Deputy Prosecutor-General, for the State.

SCMR 2011 SUPREME COURT 80 #

2011 S C M R 80

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, CJ., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

MUDDASAR QAYYUM NAHRA---Appellant

Versus

Ch. BILAL IJAZ and others---Respondents

Civil Appeal No. 435 of 2010, decided on 30th July, 2010.

(On appeal from the judgment dated 21-6-2010 in Election Petition No. 204 of 2008 passed by the Lahore High Court, Lahore).

(a) Representation of the People Act (LXXXV of 1976)---

----S.67---Constitution of. Pakistan, Art. 62---Disqualification---Bogus educational degree---Concealing of facts---Qualification of righteous, honest and ameen---Proof---Appellant was earlier declared disqualified by one university for holding a bogus degree and by concealing the report against him, he managed to take admission in another university and acquired a degree---Election Tribunal disqualified the appellant for producing a degree acquired by using unfair means---Validity---Nothing was available on record to show that at the time of taking admission in university, appellant brought the basic documents to the notice of university authorities---Election Tribunal had rightly held that if appellant had disclosed his previous disqualification, by bringing the report of previous university into the notice of later university, he would not have been allowed to appear during subsisting period of disqualification---Appellant did not put himself in witness box, palpably to avoid searching questions in cross-examination---No infirmity in the finding of Election Tribunal having been found, the same was upheld---Appellant was rightly declared a person who was neither righteous nor honest and ameen---Judgment passed by Election Tribunal did not suffer from any legal or factual infirmity to warrant interference---Appeal was dismissed.

(b) Administration of justice---

----Relief, moulding of---Principle---Discretion is vested in Supreme Court to be judicially exercised in appropriate cases in order to do complete justice between parties and mould reliefs according to altered circumstances in larger interest of justice.

Mst. Amina Begum and others v. Mehar Ghulam Dastigar PLD 1978 SC 220 and Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR 1984 rel.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court and Mian Gul Hassan Aurangzeb, Advocate Supreme Court for Appellant.

G.N. Gohar, Advocate-on-Record for Respondent No. 1.

Nemo for Respondent No. 2 to 5.

Date of hearing: 30th July, 2010.

SCMR 2011 SUPREME COURT 95 #

2011 S C M R 95

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Raja Fayyaz Ahmed, JJ

UMAR HAYAT---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.709 of 2009, decided on 21st May, 2010.

(On appeal from the judgment of the Lahore High Court, Lahore dated 13-7-2009 passed in Criminal Appeal No.276-J of 2005).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---F.I.R. was lodged against unknown persons---Prosecution case rested on "Wajtakkar" evidence---Identification parade qua the accused was not arranged through complainant---Co-accused had been acquitted by Trial Court---Leave to appeal was granted to accused by Supreme Court to reappraise the evidence for safe administration of justice, to establish guilt against him.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appraisal of evidence---Nobody was named as accused in the F.I.R.---On having found the accused involved in the commission of the offence, during investigation a proper identification parade ought to have Seen held, in. absence whereof the evidence of eye-witnesses was not free from doubt---Eye-witnesses had not reasonably explained their presence at the spot--- Inconsistencies and contradictions in the statements of the said witnesses had made their testimony incredible---Identification of accused had remained doubtful even during investigation---No crime empty having been secured from the place of incident, recovery of pistol from the accused was of no consequence---Accused was acquitted in circumstances.

Malik Abdul Haq, Advocate Supreme Court for Appellant.

M. Siddique Khan Baloch, D.P.-G., Punjab for the State.

Date of hearing: 21st May, 2010.

SCMR 2011 SUPREME COURT 99 #

2011 S C M R 99

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

Capt. (Retd.) KHALID ZAMAN---Appellant

Versus

GOVERNMENT OF PAKISTAN through Secretary, Establishment Division and others---Respondents

Civil Appeal No. 1868 of 2007, decided on 6th October, 2010.

(On appeal from the judgment dated 29-6-2007 of the Federal Service Tribunal, Islamabad passed in Appeal No. 168(R)(CS) of 2004).

Civil Servants (Seniority) Rules, 1993---

----R.5---General Clauses Act (X of 1897), S.21---Constitution of Pakistan, Art. 212 (3)---Leave to appeal was granted by Supreme Court to consider; whether service rendered by petitioner in Pakistan Army was not countable towards his service in Postal Group in the light of law laid down by Supreme Court; and whether notwithstanding re-fixation of seniority, promotion once given to petitioner in accordance with his entitlement under law, could be withdrawn in the light of principle of locus poenitentiae.

Hameed Akhtar Niazi v. Secretary Establishment Division, Government of Pakistan and another 1996 SCMR 1185 ref.

(b) Civil Servants Act (LXXI of 1973)---

----S.22---Civil Servants (Seniority) Rules, 1993, R.5---Compulsory Service (Armed Forces) Ordinance (XXXI of 1971), S. 9-A---Seniority---Pervious service of Army---Civil servant was serving in Pakistan Army and from there he joined Civil Service and was inducted in Postal Service Group---Chairman Pakistan Postal Services Management Board counted period of civil servant served in Army and fixed his service accordingly---Federal Government reversed the decision of Chairman, which order was maintained by Service Tribunal---Plea raised by civil servant was that Secretary Communication Division of Government of Pakistan, had no jurisdiction to pass such order---Validity---Pakistan Postal Service Management Board was an attached department of Communication Division of Government of Pakistan, the Secretary was head of that Division and according to provisions of S. 22(2) of Civil Servants Act, 1973, a civil servant aggrieved of any order contemplated, where no appeal or review was provided in law could validly maintain a representation before the authority next higher to that which had passed the order---Irrespective of the grade of Chairman Pakistan Postal Services Management Board and that of Secretary Communication being equal, under the Rules of Business the Secretary being in-charge of concerned division for all intents and purposes was an authority higher than the Chairman and, therefore, competent to entertain and decide representation of respondents, therefore, the objection of appellant could not sustain and was repelled---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Appeal was dismissed.

Capt. (Retd.) Abdul Qayyum v. Government of Punjab through Chief Secretary and 81 others 2003 PLC (C.S.) 1008; Hameed Akhtar Niazi v. Secretary Establishment Division, Government of Pakistan and another 1996 SCMR 1185; Muhammad Iqbal Khokhar and 3 others v. The Government of The Punjab through the Secretary to Government of the Punjab Lahore and 2 others PLD 1991 SC 35; Capt. (Retd.) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokhar and 4 others PLD 1992 SC 184 and PLD 1997 SC 351 distinguished.

Abdur Rehman Siddique, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Appellant.

Mazhar Ali Ch., DAG and M.S. Khattak, Advocate-on-Record for Respondents Nos. 1 to 3.

Shoaib Shaheen, Advocate Supreme Court for Respondents Nos.5, 7, 8, 11 to 14, 16, 17, 20, 23, 24, 34 to 36, 38, 40, 42 to 44, 46, 49, 50, 52 to 55, 57, 59, 60 and 64.

Ex parte for Respondents Nos.4, 6, 9, 10, 15, 18, 19, 21, 22, 25, 33, 37 to 39, 41, 45, 47, 48, 51, 56, 58 and 61 to 63.

Date of hearing: 6th October, 2010.

SCMR 2011 SUPREME COURT 107 #

2011 SCMR 107

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, CJ., Tariq Parvez Khan and Ghulam Rabbani, JJ

Sardar ASMATULLAH KHAN---Appellant

Versus

Moulvi MUHAMMAD SARWAR and others---Respondents

Civil Appeal No. 78-Q of 2009, decided on 14th September, 2010.

(On appeal from the judgment dated 8-5-2009 passed by the Election Tribunal, Baluchistan High Court, building, Quetta in Election Petitions Nos. 1, 3, 9, 29, 32 and 33 of 2008).

Representation of the People Act (LXXXV of 1976)---

----S.55---Higher Education Commission Ordinance (LIII of 2002), S.10---Qualification of candidate---Equivalence of degree---Respondent was returned candidate and he held Sanad of Shahadat-ul-Alamia which was not issued by an institution duly recognized by Higher Education Commission---Plea raised by respondent was that he had subsequently passed two additional subjects---Validity---Respondent failed to produce any copy of certificate to the effect nor could he refer to any year or name of institute of passing two additional subjects as pleaded by him---No such document was placed for expert opinion before Higher Education Commission and it was stated by the Commission that Deeni Sanad held by respondent was not considered as equivalent to Graduation / Bachelor's degree by Higher Education Commission---Respondent was not holding a Deeni Sanad equivalent to Graduation / Bachelor degree, therefore, he was not qualified to contest general elections of 2008 for Provincial Assembly---Respondent though a returned candidate was not, on the nomination day, qualified for or was disqualified from being elected as a member and his election as returned candidate was, therefore, void---Notification declaring respondent as returned candidate was set aside and Supreme Court directed Election Commission to issue election schedule for bye-election---Appeal was allowed.

Abdul Rehman v. Haji Ghazan Khan 2007 SCMR 1491; Moulana Abdullah v. Returning Officer and others 2003 SCMR 195 and Sanaullah Khan and others v. District Returning Officer, Mianwali and others PLD 2005 SC 858 ref.

Mian Abdul Rauf, Advocate Supreme Court for Appellant.

Qazi Muhammad Anwar, Senior Advocate Supreme Court for Respondent No. 1.

Date of hearing: 14th September, 2010.

SCMR 2011 SUPREME COURT 116 #

2011 S C M R 116

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Chairman, Mahmood Akhtar Shahid Siddiqui, Mian Saqib Nisar, Dr. Fida Muhammad Khan and Dr. Muhammad Al-Ghazali, JJ

MEHR ALI SHAH-Petitioner

Versus

THE STATE---Respondent

Jail Petition No.17(S) of 2007, decided on 26th April, 2010.

(On appeal from the judgment dated 30-4-2007 passed by the Federal Shariat Court, in Criminal Appeal No. 5/K of 2006).

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-e-amd--- Constitution of Pakistan, Art.203F(2B)---Ocular evidence against the accused was independent, unbiased and un-impreachable---Accused had been apprehended at the spot---Eyewitnesses had no enmity with the accused to falsely implicate him in the case---Plea of alibi taken by accused having not been proved, had been rejected by the courts below for cogent and valid reasons---Impugned judgment did not suffer from any factual or legal infirmity calling interference by Supreme Court---Leave to appeal was declined to accused accordingly.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Saleem Akhtar Burero, Additional Prosecutor-General, Sindh for the State.

Date of hearing: 26th April, 2010.

SCMR 2011 SUPREME COURT 118 #

2011 S C M R 118

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Jawwad S. Khawaja and Khilji Arif Hussain, JJ

Mst. SUMAIRA GUL---Appellant

Versus

LAND ACQUISITION COLLECTOR G.S.C. WAPDA, PESHAWAR and others---Respondents

Civil Appeal No. 553 of 2003, decided on 7th October, 2010.

(On appeal from the judgment dated 9-10-2002 of the Peshawar High Court, Peshawar passed in R.F.A. No. 71 of 2001).

Land Acquisition Act (I of 1894)---

----Ss. 3(e), 18 & 23 (2)---Water and Power Development Authority Act (XXXI of 1958), S.3---Acquisition of land---Compulsory acquisition charges---Acquisition for company---Appellant was owner of land which was acquired for Water and Power Development Authority to construct a grid station---Grievance of appellant was that she was entitled to compulsory acquisition charges at the rate of 25% per annum on the market value---Validity---Water and Power Development Authority was established by an act of Parliament and being a body corporate was a company within the meaning of `company' as defined by S. 3(e) of Land Acquisition Act, 1894---In addition to market value of land awarded, a sum of 15 % under S. 23 of Land Acquisition Act, 1894, as compulsory acquisition charges was to be awarded and if Federal or Provincial Government would acquired land for public purpose then a sum of 25% on such market value as compulsory acquisition charges was to be awarded---Land in question was acquired for a company in terms of S. 3(e) of Land Acquisition Act, 1894, therefore, appellant was entitled for compulsory acquisition charges, in addition to market value of land at the rate of 25 % and not at the rate of 15 % as awarded by High Court---After taking into consideration all necessary aspects of the matter, High Court had rightly come to the conclusion that an amount of Rs.8000 per marla as compensation was reasonable market value for the land in question---Judgment of High Court was modified to the extent of awarding compulsory acquisition charges and the same were enhanced from 15% to 25 % of the market value of land in question---Appeal was allowed.?

Abdul Sattar Khan, Advocate Supreme Court for Appellant.

S. Arshad Hussain Shah, Additional Advocate-General and Sh. Riaz-ul-Haq, Advocate Supreme Court for Respondents.

Date of hearing: 7th October, 2010.

SCMR 2011 SUPREME COURT 121 #

2011 S C M R 121

[Supreme Court of Pakistan]

Present: Rahmat Hussain Jafferi and Ghulam Rabbani, JJ

Dr. S.M. INKISAR ALI---Appellant

Versus

GOVERNMENT OF SINDH and others---Respondents

Civil Appeals Nos. 1254 and 1255 of 2005, decided on 20th October, 2010.

(Against judgment dated 29-6-2004 of Sindh Service Tribunal, Karachi, passed in Appeals No.58 of 1997, 8 of 1999 and 415 of 2000).

Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---

---Rr. 8 & 8-A---Promotion, types of---Fixing of seniority---Grievance of appellant was that he was senior to respondent and notification declaring him so was rightly issued by government---Validity---Distinction had to be made in between two cases of promotions one on regular basis and other on acting charge basis, which was a temporary/ ad hoc promotion to fill a vacancy as a stopgap arrangement in public interest---Such distinction was available under Rule 8 of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, which was for regular promotion under which case of an officer could be considered on the condition that he possessed the required qualification and fulfilled other conditions of such promotion---Whereas Rule 8-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, was for promotion under acting charge basis, in that promotion only the case of the most senior officer who was otherwise eligible for promotion but did not possess specified length of service could be considered---Alleged supersession did not carry any stigma in respect of appellant---Notification declaring appellant as senior to respondent was proper and legal, which held the field, therefore, appellant was senior to the respondent---Appeal was allowed.

Abrar Hassan, Advocate Supreme Court and Mrs. Shiraz Iqbal Chaudhry, Advocate-on-Record for Appellant (in both cases).

Abdul Fateh Malik, Additional Advocate-General, Sindh, Mehr F. Hansotia, Registrar, Dow University of Health Sciences, Karachi for Respondents Nos. 1, 2 and 4 (in Civil Appeal No. 1254 of 2005).

Mushtaq A. Memon, Senior Advocate Supreme Court, Khalid Javed Khan, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No. 3 (in Civil Appeal No. 1254 of 2005).

Abdul Fateh Malik, Additional Advocate-General, Sindh and Mehr F. Hansotia, Registrar, Dow University of Health Sciences, Karachi for Respondents Nos. 1 and 2 (in Civil Appeal No. 1255 of 2005).

Sohail H. K. Rana, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Respondent No.3 (in Civil Appeal No. 1255 of 2005).

Mushtaq A. Memon, Senior Advocate Supreme Court, Khalid Javed Khan, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No. 4 (in Civil Appeal No. 1255 of 2005).

Date of hearing: 29th June, 2010.

SCMR 2011 SUPREME COURT 128 #

2011 S C M R 128

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed and Tariq Parvez Khan, JJ

MUHAMMAD SARFRAZ---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 351 of 2009, decided on' 11th May, 2010.

(On appeal from the judgment dated 21-5-2009 of the Lahore High Court, Lahore passed in Criminal Appeal No. 1119 of 2003 and Murder Reference No. 449 of 2003).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)---Qatl-e-amd---Leave to appeal was granted to accused by Supreme Court only to consider whether death sentence awarded to him was justified in view of the compromise made by two out of the three legal heirs of the deceased and further to consider whether accused was below the age of 18 years on the date of occurrence, as he had claimed to be 19 years old in his statement recorded under S. 342, Cr.P.C. by Trial Court.

Amir and another v. The State 2003 SCMR 561; Muhammad Anwar v. The State 2008 SCMR 987,and Jail Petition No.716 of 2009 ref.

Malik Amjad Parvez, Advocate Supreme Court and Muhammad Zaman Bhatti, Advocate Supreme Court for the Petitioner.

Syed Ali Imran, Deputy Prosecutor-General for the State.

SCMR 2011 SUPREME COURT 131 #

2011 S C M R 131

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed and Tariq Parvez Khan, JJ

KHALIQ HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 328 of 2010, decided on 27th October, 2010.

(On appeal from the judgment/order dated 14-5-2010 passed by Lahore High Court, Multan Bench, Multan in Criminal Appeal No. 630 of 2005 and Murder Reference No. 761 of 2005).

Penal Code (XLV of 1860)---

----S. 302 (b) & (c)---Criminal Procedure Code (V of 1898), S.340 (2)---Constitution of Pakistan, 1973, Art. 185(3)---Reappraisal of evidence---Defence plea---Evidence on oath, non-giving of---Trial Court convicted the accused under S. 302(b), P.P.C. and awarded him death sentence but High Court altered the sentence into imprisonment for life---Plea raised by accused was that his defence plea was not considered by Trial Court---Validity---Plea of accused remained a plea without any support from evidence---No lady from the house was produced in defence to corroborate version of accused regarding injuries caused to prosecution witness---Plea of accused was that at the time of occurrence it was only him and deceased present, therefore, if he could not produce any witness in support of his plea, he should have examined himself by appearing under S. 340(2), Cr.P.C. on oath to support his defence plea---Plea of accused was unreasonable as belatedly setup during the trial because he had made no report in respect of assault made on him, if any, and since he had not appeared under S. 340(2), Cr. P. C. on oath and no inmate of the house was examined to explain the injuries of prosecution witness, the defence plea was not held to be ground to be believed as against prosecution evidence---Two eye-witnesses had given straightforward narration of occurrence, their testimonies were supported by medical evidence and by other corroborative piece of evidence including the motive---Accused himself admitted his presence and also that he had caused injuries on the person of deceased and the plea of self-defence was unreasonable and unsupported, therefore, there was no substance to convert conviction of accused from S. 302(b), P.P.C. to 302(c), P.P.C.---Supreme Court declined to interfere in the conviction and sentence awarded to accused by High Court---Leave to appeal was refused.

Malik M. Latif Khokhar, Advocate Supreme Court for Petitioner.

M. Irfan Malik, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 27th October, 2010.

SCMR 2011 SUPREME COURT 136 #

2011 S C M R 136

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali, Rahmat Hussain Jafferi and Tariq Parvez Khan, JJ

Criminal Appeal No. 361 of 2001

KHALID AZIZ---Appellant

Versus

THE STATE---Respondent

(Against judgment dated 14-5-2001 of Peshawar High Court, Peshawar, passed in Ehtisab Appeal No.4 of 2000).

Criminal Appeal No. 362 of 2001

THE STATE---Appellant

Versus

KHALID AZIZ---Respondent

(Against judgment dated 14-5-2001 of Peshawar High Court, Peshawar, passed in Ehtisab Appeal No.4 of 2000).

Criminal Appeals Nos. 361 and 362 of 2001, decided on 5th October, 2010.

(a) National Accountability Ordinance (XVIII of 1999)---

----S. 14 (c)---Presumption---Shifting of onus, principle of---Prosecution has to establish necessary ingredients and then burden shifts upon accused to explain his position as required under S. 14(c) of National Accountability Ordinance, 1999.?

(b) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(v) & 14 (c)---Reappraisal of evidence---Assets beyond known sources of income---Presumption---Principle of shifting of onus---Failure to declare assets under Income Tax, Laws---Effect---Prosecution only produced declaration of asset filed by accused before his department, which showed that he owned various properties and was earning income therefrom---Prosecution did not lead any evidence to show about the amount received by accused from his salary, allowances etc. during the period of his service---Trial Court convicted the accused and sentenced him to 10 years' imprisonment---Validity---Prosecution did not produce required evidence to prove that amount alleged or final amount determined by High Court was disproportionate to the known source of income, as such, prosecution failed to prove. main ingredient of the offence---Burden was not shifted upon accused to furnish explanation as provided under S. 14(c) of National Accountability Ordinance, 1999 in circumstances---Accused explained his position by giving details of each and every transaction in the accounts of his wife and produced relevant evidence in shape of statements of his wife, father-in-law and other defence witnesses along with documentary evidence.-All defence witnesses fully supported the stand taken by accused with documentary evidence---Non-mentioning of such amounts in Income Tax Department or that resolution was not filed with Registrar, Cooperative Societies by the family firm of accused, by itself would not affect the explanation or draw any adverse inference against the accused as appropriate action could be taken under Income Tax Laws or by the Registrar, under Cooperative Societies Act, 1925, against the firm under the relevant provision of law, if such laws were violated---Prosecution had failed to prove case against accused beyond any reasonable doubt, therefore, conviction and sentence awarded to him was set aside and was acquitted of the charge---Appeal was allowed.?

Hakim Ali Zardari v. State 2007 MLD 910; Farrukh Javed Ghumman v. State PLD 2004 Lah. 155 and State of Maharashtra v. Wasudeo Ramchandra AIR 1981 SC 1186 rel.

Wasim Sajjad, Senior Advocate Supreme Court for Appellant (in Criminal Appeal No. 361 of 2001).

Dr. Asghar Rana, Additional Prosecutor-General for Appellant (in Criminal Appeal No. 362 of 2001).

Dr. Asghar Rana, Additional Prosecutor-General for Respondent (in Criminal Appeal No. 361 of 2001).

Wasim Sajjad, Senior Advocate Supreme Court for Respondent (in Criminal Appeal No. 362 of 2001).

Date of hearing: 5th October, 2010.

SCMR 2011 SUPREME COURT 145 #

2011 S C M R 145

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Raja Fayyaz Ahmed, JJ

MUHAMMAD AKRAM---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 189 of 2009, decided on 12th November, 2009.

(On appeal against the judgment dated 9-3-2009 passed by Lahore High Court, Lahore in Criminal Appeal No. 609 of 2003).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)-- Qatl-e-amd---Accused had committed three murders---Presence of complainant and other eye-witnesses at the scene of crime was natural---Ocular version was corroborated by medical evidence---Blood-stained "chhuri" recovered at the instance of the accused was found to be stained with human blood---Recovery evidence was independent and impartial---Ocular testimony was consistent having no material contradiction---No previous enmity existed between the parties except the present cause of occurrence---Accused acting in a brutal way had given several "chhuri" blows to three deceased, who succumbed to the same--Impugned judgment did not call for any interference---Leave to appeal was declined to accused in circumstances.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

M. Siddique Khan Baloch, Deputy Prosecutor-General for the State.

Date of hearing: 12th November, 2009.

SCMR 2011 SUPREME COURT 148 #

2011 SCMR 148

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

Mst. AMMARA WASEEM---Petitioner

Versus

Syed KHAWAR HUSSAIN and another---Respondents

Civil Petition No. 1854 of 2010, decided on 20th October, 2010.

(On appeal from the judgment dated 25-8-2010 in W.P. No.1530 of 2010 passed by the Lahore High Court, Rawalpindi Bench).

Guardians and Wards Act (VIII of 1890)---

----S. 25---Custody of minor---Divorced mother of a minor, had contracted second marriage with a person residing in United States of America, and had left Pakistan, leaving the minor in Pakistan with his maternal parents, palpably, to join her second husband in USA and she had even manoeuvred to obtain immigration visa for the minor seemingly for no purpose other than taking him away for his superintendence to a place far flung from the one of the father, for which, no plausible reason could be offered---Father had not remarried---Mother, who was on family way, from her second marriage, in circumstances, was not entitled to the custody of minor and the father of the minor was entitled to have the custody in the larger interest and welfare of the minor which was always predominating condition in such-like cases.

Khan Muhammad v. Surayya Bibi 2008 SCMR 480 and Mst. Naseem Akhtar v. District Judge, Multan and others 2009 SCMR 1052 applied.

Mst. Razia Rehman v. Station House Officer and others PLD 2006 SC 522 distinguished.

Malik Qamar Afzal, Advocate Supreme Court for Petitioner.

Respondent No. 1 in person.

Date of hearing: 20th October, 2010.

SCMR 2011 SUPREME COURT 153 #

2011 S C M R 153

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Jawwad S. Khawaja and Khiiji Arif Hussain, JJ

Messrs ISLAMABAD FARMING COOPERATIVE SOCIETY and others---Appellants

Versus

GHULAM ABBAS KHAN and others---Respondents

Civil Appeals Nos. 1621, 1657 of 2003 and Civil Appeal No. 41 of 2004, decided on 6th October, 2010.

(Against the judgment dated 8-7-2003 passed by the Lahore High Court, Rawalpindi Bench in R.F.A. No. 19 of 1995).

(a) Islamic Law---

----Marz-ul-Maut---Plea that deceased has executed power of attorney during mart-ul-maut---Proof---Treatment or hospitalization of deceased at time of execution of power of attorney had not been proved by producing any independent witness or medical practitioner or documentary evidence--- Deceased had executed power of attorney 10 months before his death---Such plea was repelled in circumstances.

(b) Contract Act (IX of 1872)---

----S. 218---Sale of land by principal through his attorney---Setting aside of such sale sought on ground that attorney had not rendered its accounts to principal---Validity---Breach of his obligation by attorney to render account under S. 218 of Contract Act, 1872 would not invalidate such sale itself, but would give rise to a cause of action to principal to seek a rendition of accounts and recovery of sums determined to be due from him---Principles.

Fida Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and others PLD 1985 SC 341 and Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494 distinguished.

----S. 42---Mutation of sale, attestation of---Scope---Vendor would not be supposed to sign mutation register, rather his signatures or thumb impression might be taken on roznamcha waqiati.

Gul Zarin Kiyani, Senior Advocate Supreme Court for Appellants (in Civil Appeal No. 1621 of 2003).

M.S. Khattak, Advocate-on-Record for Respondents Nos. 2, 3, 10 (in Civil Appeal No. 41 of 2004).

Ajam Naz Malik, Advocate Supreme Court for Appellants (in Civil Appeal No. 1657 of 2003).

Munir Paracha, Advocate Supreme Court for Appellants (in Civil Appeal No: 41 of 2004).

Abdul Rashid Awan, Advocate Supreme Court for Respondents Nos. 1, 6 and 9 (in Civil Appeals Nos. 1621 and 1657 of 2003).

Abdul Rashid Awan, Advocate Supreme Court for Respondents Nos. 1 and 5 to 8 (in Civil Appeal No. 41 of 2004).

Ex parte for Respondents Nos. 4 and 10.

Ex parte for Respondents Nos. 2, 4, 10.

Nemo for Respondent No. 5 (in Civil Appeal No. 1621 of 2003).

Nemo for Respondent No. 3 (in Civil Appeal No. 1657 of 2003).

Date of hearing: 6th October, 2010.

SCMR 2011 SUPREME COURT 161 #

2011 S C M R 161

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

ABID ALI alias ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 94 of 2010, decided on 22nd April, 2010.

(Against the order dated 2-3-2010 passed by the Lahore High Court, Rawalpindi Bench, in Criminal M. No. 228-B of 2010).

(a) Bail---

----Bail cannot be withheld as punishment.

Abdul Malik v. The State PLD 1968 SC 349 and Manzoor and 4 others v. The State PLD 1972 SC 81 ref.

(b) Bail---

----Ipse dixit of police is not binding on court.

Manzoor and 4 others v. The State PLD 1972 SC 81 rel.

----Even for the purposes of bail, law is not to be stretched in favour of prosecution.

Amir v. The State PLD 1972 SC 277 rel.

(d) Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/148/149---Qatl-e-Amd---Bail, grant of---Further inquiry---Not nominated in F.I.R.---Supplementary statement---Submission of challan---Name of accused was not mentioned in F.I.R. but his name was included in the list of accused in supplementary statement--- Effect--- There was no explanation available in such regard, therefore, case of accused fell under the category of further inquiry---Although challan had been submitted in court and the case was fixed for hearing but still prima facie the case of accused appeared to be one of further inquiry and was covered under the provisions of S. 497, Cr.P.C., then it had become a right of accused that he be released on bail---Practice of refusal in such cases where challan was submitted should not be a bar to refuse a right---Observations made by superior courts dealing with bail matters were always tentative in nature---Bail was allowed.

Tahir Abbas v. The State 2003 SCMR 426 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

Malik Waheed Anjum, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Petitioner.

Raja Shahid Mehmood Abbasi, Deputy Prosecutor-General and Sohail Zafar, S.H.O, Police Station Waris Khan for the State.

Malik Rab Nawaz Noon, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for the Complainant.

SCMR 2011 SUPREME COURT 165 #

2011 SCMR 165

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad, Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD SALMAN SHAFIQUE---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No. 116 of 2008, decided on 5th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Constitution of Pakistan, Art. 185(3)---Possession of narcotic drug etc.---Bail, grant of---Further inquiry---Heroin weighing 1.530 kilogram was recovered from the suit-case of co-accused at the airport---According to said co-accused the suit-case belonged to present accused---Trial Court had granted bail to accused, which had been recalled by High Court vide impugned order---Held, Trial Court had allowed bail to accused after proper examination and appreciation of the facts and the evidence available on record and rightly concluded that the matter required further inquiry--No exception could be taken to the observation so made by the Trial Court---High Court had cancelled the bail violating the principles embodied in S.497(5), Cr. P. C. and the guidelines laid down by Supreme Court relating to cancellation of bail---Order passed by High Court was arbitrary and whimsical and was set aside---Bail was allowed to accused accordingly.

Aftab Ahmad Bajwa, Advocate Supreme Court for Petitioner.

Sh. Izhar-ul-Haq, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record and Syed Muhammad Ali, Inspector Customs for Respondents.

Date of hearing: 5th June, 2008.

SCMR 2011 SUPREME COURT 168 #

2011 S C M R 168

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Khilji Arif Hussain and Asif Saeed Khan Khosa, JJ

MUHAMMAD SHAHID---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 774 of 2009, decided on 28th May, 2010.

(On appeal against the judgment dated 14-7-2009 passed by High Court of Balochistan, Quetta in Criminal Jail Appeal No. 25 of 2007 and Murder Reference No. 9 of 2007).

Penal Code (XLV of 1860)---

----Ss. 302(b) & 201---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd and causing disappearance of evidence of offence---Submissions were, that occurrence was unseen, circumstantial evidence was insufficient to prove the guilt of accused---Courts below had erred in law in resorting to convictions under Ss. 302 and 201, P.P.C. at a time and no independent evidence was led to prove fear and public alarm to attract the provisions of S. 6 of the Anti-Terrorism Act, 1997---Leave to appeal was granted to accused to consider, inter alia, the said points.

Fazal Dad v. Ghulam Muhammad Malik PLD 2007 SC 571 ref.

Abdul Haq Malik, Advocate Supreme Court for Petitioner.

Raja Abdul Ghafoor, Advocate Supreme Court on behalf of Advocate-General Balochistan for the State.

SCMR 2011 SUPREME COURT 170 #

2011 S C M R 170

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ghulam Rabbani, JJ

Malik AQEEL---Petitioner

Versus

THE STATE---Respondent

Criminal P.L.A. No. 9-K of 2010, decided on 22nd March, 2010.

(On appeal from order of High Court of Sindh, Karachi dated 20-1-2010 passed in Criminal Miscellaneous Application No. 315 of 2009).

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 302/34---Constitution of Pakistan---Qatl-e-amd---Pre-arrest bail, refusal of---Prosecution, prima facie, was equipped with ample evidence to connect the accused with the commission of the offence---Deeper appreciation of evidence at bail stage was not warranted by law---No mala fide had been attributed either to the complainant or the Investigating Officer for false implication of accused in the crime---Pre-arrest bail was declined to accused in circumstances.

M.A. Kazi, Senior Advocate Supreme Court for Petitioner.

Nemo for the State.

Anwar Hussain, Advocate Supreme Court for the Complainant.

SCMR 2011 SUPREME COURT 171 #

2011 S C M R 171

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Khilji Arif Hussain and Asif Saeed Khan Khosa, JJ

MIR AFZAL KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 317 of 2004, decided on 3rd June, 2010.

(On appeal from the judgment dated 10-6-2002 of the Peshawar High Court, D.I. Khan Bench passed in Cr. A. 57 of 1999).

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appraisal of evidence---Incident had occurred in daylight---F.I.R. had been lodged without unnecessary delay---Accused was specifically named in F.I.R.---Ocular evidence was consistent qua the role of accused, time of occurrence, motive and the manner of attack had Inspired confidence---Abscondence of accused for about four and a half years had also corroborated his guilt---Concurrent findings of the courts below being in accord with the prosecution evidence did not call for interference---Appeal was dismissed in circumstances.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

M. Bilal, Advocate Supreme Court on behalf of Advocate-General, K.P.K. for the State.

Date of hearing: 3rd June, 2010.

SCMR 2011 SUPREME COURT 174 #

2011 S C M R 174

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, CJ., Tariq Parvez Khan and Ghulam Rabbani, JJ

ZARAI TARAQIATI BANK LTD. and another---Petitioners

Versus

MUHAMMAD BAKHSH and another---Respondents

Civil Petition No. 2132 of 2010, decided on 11th November, 2010.

(On appeal from the judgment/order dated 12-7-2010 passed by Federal Service Tribunal, Islamabad in Appeal No. 1009(R) CS of 2007).

Service Tribunals Act (LXX of 1973)---

----S. 2-A---Constitution of Pakistan, Art. 212(3)---Employee, in the present case, had approached the Federal Service Tribunal with the prayer that benefit of protection of pay be extended to him and arrears of the salary be also allowed on the premise that before joining the organization he was working in Ministry of Interior, Directorate-General of Registration (NADRA), from 5-11-1973 to 12-6-1985 and Service Tribunal on having taken into consideration the pleadings of the parties and the relevant material available on record had accepted the appeal by means of impugned judgment---Validity---Leave to appeal was granted by Supreme Court to examine the effect of the judgments reported as Dr. Muhammad Amin v. President, Zarai Taraqiati Bank Ltd. 2010 SCMR 1458 and Raja Riaz v. Chairman, Pakistan Space and Upper Atmosphere Research Commission 2008 SCMR 402, keeping in view the fact that after the pronouncement of the judgment in Dr. Muhammad Amin's case on 17th February, 2010, S. 2A of the Service Tribunals Act, 1973 had been repealed vide Act No. II of 2010, dated 6th March, 2010, therefore, notwithstanding the observations made in Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 or in the case of Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681, the employees of such organization would be entitled to avail remedy before the Service Tribunal.

Mian Muhammad Hanif, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Respondents.

SCMR 2011 SUPREME COURT 176 #

2011 S C M R 176

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Raja Fayyaz Ahmed, JJ

MUHAMMAD MANSHA-Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 158 of 2009, decided on 10th November, 2009.

(On appeal against the judgment dated 11-2-2009 passed by Lahore High Court, Lahore in Criminal Appeals Nos. 2-J of 2003, 1197 and 1624 of 2002 and Murder Reference No. 683 of 2002).

Penal Code (XLV of 1860)---

----S. 302(b)/34---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Accused had allegedly fired from the roofs of the houses of different persons and their identification from such places was impossible---Credibility of the witnesses would be adjudged in view of the previous enmity between the parties---Leave to appeal was granted to accused for reappraisal of the evidence in order to consider the aforesaid points.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Pir S.A. Rashid, Advocate Supreme Court for the Complainant.

M. Siddique Khan Baloch, Deputy Prosecutor-General for the State.

SCMR 2011 SUPREME COURT 177 #

2011 S C M R 177

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Jawwad S. Khawaja and Mian Saqib Nisar, JJ

COMMISSIONER OF INCOME TAX, LAHORE and CHAIRMAN FBR, ISLAMABAD and others---Appellants/Applicants

Versus

Messrs PROSPERITY WEAVING MILLS (PVT.) LTD. and others---Respondents

Civil Appeals No. 640 to 643 of 2006, Civil Petition No. 1001-L of 2006 and C.M.As. Nos. 2398 to 2401 of 2009, decided on 26th October, 2010.

(On appeal from the judgment dated 26-9-2005 passed by the Lahore High Court, Lahore in W.Ps. Nos. 1803, 4993, 5486, 6183 of 2004, 18903 of 2005 respectively).

Income Tax Ordinance (XXXI of 1979)---

----Second Sched. Part-I, Cls. 77-C & 77-C(A)---Income Tax Ordinance (XLIX of 2001), S. 239(14)--- S.R.O.100(I)/93, dated 2-2-1993, R.9---National Saving Schemes---Exemption from deduction of withholding tax on profits paid in said schemes---Scope---Exemption has been extended to all kinds of investments made in the National Saving Schemes, which continued on the enforcement of Income Tax Ordinance, 2001 by virtue of its S.239(14), which saved the application and continuity of Cl.77-C, of Part-I of Second Schedule of the Income Tax Ordinance, 1979---Only restriction which remained in force was that said exemption, shall be available on the yield of the investments made on or before 30-6-2001---When the exemption was available to the investments of National Saving Schemes under the express provisions of law, such exemption could not be snatched, withdrawn or taken away by a sub-legislative instrument of the Federal Government, which might have been issued in the garb of interpreting the provision of any law.

Muhammad Ilyas Khan, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court for Appellants (in all cases).

Saghir Ahsan Farooqui, NSO for the Applicants (in C.M.A. No.2398 to 2401 of 2009).

Siraj Khalid, Advocate Supreme Court and Dr. Ikram-ul-Haq, Advocate Supreme Court for Respondents.

Date of hearing: 26th October, 2010.

SCMR 2011 SUPREME COURT 180 #

2011 SCMR 180

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, CJ., Nasir-ul-Mulk and Tariq Parvez Khan, JJ

Mian NAJEEB-UD-DIN OWAISI---Appellant

Versus

AAMIR YAR and 7 others---Respondents Civil Appeal No. 191-L of 2010, decided on 2nd July, 2010.

(On appeal from the judgment dated 2-4-2010 of the Lahore High Court, Lahore passed in C.M. No. 1 of 2009 in E.P. No. 46 of 2008).

Representation of the People Act (LXXXV of 1976)---

----S. 78---Constitution of Pakistan, Arts.62 & 63---Corrupt practices---Election of the returned candidate to the Parliament was challenged on the ground that he had procured a bogus B.A. degree and on the strength of said bogus degree, allegedly issued by the University of Balochistan, had successfully contested the election---Validity---Held, that person who offered himself for an election for the seat of the Parliament or a Provincial Assembly so to represent electors of his own constituency was required to fulfil the qualification as laid down under Art.62 of the Constitution and that he shall not suffer front any disqualification as envisaged under Art.63 of the Constitution---In view of the facts and circumstances of the present case, the matter was required to be dealt with by Chief Election Commissioner in accordance with the provisions of S.78, Representation of the People Act, 1976---Supreme Court directed the Chief Election Commissioner to proceed accordingly against the candidate following the observations made in the present judgment---Office of the court was directed that copy of "Final Probe Report" submitted by Registrar, University of Balochistan shall also be sent to Chief Election Commissioner for perusal and action accordingly.

Muhammad Safdar Abbasi v. Aamir Yar Malik and 3 others 2004 SCMR 1602 and Nawabzada Iftikhar Ahmad v. Chief Election Commissioner and others (C.P. No. 287 of 2008 decided on 25th March, 2010) and in C.A. No. 409 of 2010 ref.

Aftab Ahmad Bajwa, Advocate Supreme Court for Appellant.

G.N. Gohar, Advocate Supreme Court/Advocate-on-Record for Respondent No. 1.

Adnan Kasi, Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record and Muhammad Iqbal Kasi, Registrar for Balochistan University.

Date of hearing: 2nd July, 2010.

SCMR 2011 SUPREME COURT 190 #

2011 S C M R 190

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Ghulam Rabbani, JJ

HYDERABAD ELECTRIC SUPPLY COMPANY---Petitioner

Versus

UNIVERSITY OF SINDH and others---Respondents

C.P.L.A. No. 563-K of 2009, decided on 21st June, 2010.

(On appeal from order of High Court of Sindh, Karachi dated 6-5-2009 passed in C.P. No. D-88 of 2007-HYD).

Pakistan Water and Power Development Authority Act (XXXI of 1958)---

----S. 14---Land Acquisition Act (I of 1894), S. 50---Constitution of Pakistan, Arts.199 & 185(3)---Leave to appeal was granted inter alia, to examine whether the High Court, in exercise of its jurisdiction under Article 199 of the Constitution, was justified in issuing directions to the Revenue Department for initiating land acquisition proceedings in respect of the disputed land of the respondents, allegedly occupied by the petitioner by way of installation of electric pole of transmission line, thereby ignoring the provisions of S.14 of the WAPDA Act, 1958, and further to examine whether the constitutional petition preferred by the respondents before the High Court, did not suffer from laches.

Abdul Latif Ansari, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner.

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Respondent No.1.

SCMR 2011 SUPREME COURT 191 #

2011 S C M R 191

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Khilji Arif Hussain, JJ

ABDUL REHMAN and others---Appellants

Versus

Mst. SAHIB BIBI and another---Respondents

Civil Appeal No. 588 of 2006, decided on 3rd November, 2010.

(On appeal from the judgment dated 29-5-2001 passed by the Lahore High Court, Lahore, in C.R. No. 1892 of 1993).

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 34 & 35---Specific Relief Act (I of 1877), Ss. 39 & 42---Civil Procedure Code (V of 1908), S. 12(2)---Constitution of Pakistan, Art.185(3)---Pre-emption suit---Decree passed on 2-7-1987 (i.e. after target date 28-4-1987) was not challenged by vendee in appeal, revision or application under S. 12(2), C.P.C.---Separate suit was filed on 25-5-1991 for declaring such decree to be without jurisdiction and cancellation of mutation attested on its basis---Maintainability---Action started under a law and pending at time of its repeal would be completed thereunder unless new law saved pending proceedings---Provision of S. 12(2), C.P.C., had taken away right of separate suit to challenge a judgment/decree/order on grounds of fraud, misrepresentation or want of jurisdiction--- Suit was dismissed in circumstances.

Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1062 fol.

(b) Civil Procedure Code (V of 1908)---

----Ss. 12(1), 122 & First Sched.---Term "Rules" as used in S. 12(1), C.P.C. has reference to Rules and Forms contained in First Sched., or made under S. 122, C.P.C.

Ch. M. Amin Javed, Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record for Appellants.

Syed Iftikhar H. Shah, Advocate Supreme Court for Respondent No. 1.

Respondent No. 2 ex parte.

Date of hearing: 3rd November, 2010.

SCMR 2011 SUPREME COURT 196 #

2011 SCMR 196

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Ghulam Rabbani, JJ

MUHAMMAD SALEEM---Appellant

Versus

MANSOOR ARIF and others---Respondents

Civil Appeal No. 2769 of 2006, decided on 17th November, 2009.

(On appeal from the judgment dated 3-7-2002 in C.R. No. 20327 of 1997 passed by the Lahore High Court, Lahore).

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Registered sale-deed alleged by plaintiff to have been got executed fraudulently by his son in favour of vendee: without payment of sale consideration---Proof---Deposition of vendee's attorney had revealed that plaintiff had put his thumb impression on sale deed after same was read over to him and receipt of sale price of suit land through cheque and cash; that plaintiff had admitted such facts before Sub-Registrar in presence of marginal witnesses; and that vendee had raised construction on suit land after getting its possession---Marginal witnesses of sale-deed supported such statement of vendee's attorney---Sub-Registrar as witness deposed that he took thumb impression of plaintiff on sale-deed after admitting receipt of sale price in his presence---Manager of Bank deposed that amount of bearer cheque in plaintiff's name was received by his son---Plaintiff's intention to sell suit-land was evident from evidence of Patwari Halqa, who stated that plaintiff got copy of Fard Malkiat for sale in presence of his son and vendee; and that suit sale was duly recorded in roznamcha waqiati---Evidence on record showed that plaintiff was residing with his son in the same house---Vendee had successfully established execution of sale-deed and payment of sale price---Suit was dismissed in circumstances.

Gulzarin Kiani, Advocate Supreme Court for Appellant.

Ch. Muhammad Akram, Advocate-on-Record for Respondents Nos.1, 2, 3, 5, 7(i) to (iii), 8 and 9.

Respondents Nos. 4, 6, 10: Ex parte.

Date of hearing: 17th November, 2009.

SCMR 2011 SUPREME COURT 200 #

2011 SCMR 200

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, and Raja Fayyaz Ahmed, JJ

MUKHTAR AHMAD---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 235 of 2009, decided on 12th November, 2009.

(On appeal against the judgment dated 8-4-2009 passed by Lahore High Court, Lahore in Criminal Appeal No. 257 of 2004 and Murder Reference No. 4 of 2005).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Deceased was the wife of the accused---Contention was that Walis of the victim who were minor children, were direct descendants of the offender; accused, therefore, was not liable to capital punishment---Leave to appeal was granted to accused to consider the said question.

Muhammad Taman Bhatti, Advocate Supreme Court for Petitioner.

M. Siddique Khan Baloch, Deputy Prosecutor-General for the State.

SCMR 2011 SUPREME COURT 201 #

2011 SCMR 201

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Khilji Arif Hussain and Tariq Parvez Khan, JJ

MUHAMMAD WAQAS RAFI BHATTI and another---Petitioners

Versus

MUHAMMAD SARMAD RAFI BHATTI and others---Respondents

Civil Petition No. 1656 of 2010, decided on 1st November, 2010.

(On appeal from the judgment Lahore High Court, Lahore dated 6-7-2010 passed in C.M. No. 4/C of 2010 in R.F.A. No. 194 of 2010).

Civil Procedure Code (V of 1908)---

----O.XLI, R.5---Money decree---Appeal against---Application for stay of execution of such decree---Acceptance of such application by High Court without notice to respondent on furnishing security by appellant to cover decretal amount---Plea of respondent that he had serious reservations regarding evaluation of property furnished as security--Validity---Supreme Court, with the agreement of both the parties, treated impugned order as interim one to enable respondent to raise before High Court objections to suspension of execution proceedings and partially allowed appeal and deeming such application pending before High Court, which would decide the same afresh after hearing the respondent.

Messrs Arkywas (Pvt.) Limited v. Federation of Pakistan PLD 1992 SC 250 distinguished.

Masud Abid Naqvi, Advocate Supreme Court for Petitioners.

Gulzarin Kiyani, Senior Advocate Supreme Court for Respondents.

Date of hearing: 1st November, 2010.

SCMR 2011 SUPREME COURT 203 #

2011 SCMR 203

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, CJ., Tariq Pervez Khan and Ghulam Rabbani, JJ

ABDUL HANAN---Petitioner

Versus

SAFDAR ALI and others---Respondents

Civil Petition No. 2009 of 2010, decided on 3rd November, 2010.

(On appeal from the judgment/order dated 14-9-2010 passed by Lahore High Court, Lahore in W.P. No. 7005 of 2010).

West Pakistan Land Revenue Rules, 1968---

----R.17---Application for appointment of lamberdar---Applicant being of age of 18 years, 5 months and 16 days on date of making such application, while he reached to age of 21 years, 6 months and 14 days on date of decision of matter in his favour by Board of Revenue---Validity---Applicant was qualified to be appointed as Lamberdar, in circumstances.

Maqbool Ahmed Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484 ref.

Syed Zafar Ali Shah, Advocate Supreme Court for Petitioner.

Rehan-ud-Din Sheikh, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondent No. 1.

Hafiz Aftab Ahmed, Superintendent for Board of Revenue.

SCMR 2011 SUPREME COURT 207 #

2011 SCMR 207

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ

MAULA BUX and others---Appellants

Versus

CHIEF ADMINISTRATOR OF AUQAF, LAHORE and others---Respondents

Civil Appeal No. 599 of 2007, decided on 1st December, 2010.

(On appeal against the judgment dated 18-12-2000 passed by Lahore High Court, Lahore in FAO No. 113 of 1984).

Auqaf (Federal Control) Act (LVI of 1976)---

----Ss. 7 & 11---Punjab Waqf Properties Ordinance (IV of 1979), S.11.--Taking over of waqf property by notification---Validity---Counsel of both the parties were of the view that the best evidence which could be produced by the parties was not tendered, and in the interest of justice, the matter, be remanded to the District Judge to decide appellants' application under S.11, Punjab Waqf Properties Ordinance, 1979 afresh and expediously---Supreme Court found the stand taken by the counsel as reasonable, allowed the appeal and set aside judgment of High Court as also of District Judge and directed that appellants' application under S.11 of the Auqaf (Federal Control) Act, 1976, which stood superseded by the Punjab Waqf Properties Ordinance, 1979 shall be deemed to be pending and decided afresh within eight weeks of the receipt of the present judgment.

Raja Zulqarnain, Advocate Supreme Court for Appellants.

Naseem Ahmed Khan, Advocate Supreme Court and Shabbir Ahmed Khan, Advocate Supreme Court for Respondents.

SCMR 2011 SUPREME COURT 208 #

2011 SCMR 208

[Supreme Court of Pakistan]

Present: Nasir-ur-Mulk, Khilji Arif Hussain and Tariq Parvez Khan, JJ

ABID ALI and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 150 of 2009, decided on 1st November, 2010.

(On appeal from the judgment/order dated 15-5-2008 passed by Lahore High Court, Lahore in Criminal Appeal No. 146-J of 2002).

(a) Penal Code (XLV of 1860)---

---Ss. 302(b) & 379---Criminal Procedure Code (V of 1898), S.103---Qatl-e-amd and theft---Re-appraisal of evidence---Chance and interested witnesses---Incriminating articles, recovery of---Effect---Accused were convicted under S. 302(b), P.P.C. for Qatl-e-amd and were sentenced to death---Validity---Statements of two eye-witnesses claiming to be present at the scene of crime but they on their own admissions were chance witnesses and had admitted their enmity with accused persons---Both the witnesses could not reasonably explain their presence with deceased, rather their conduct ran against natural behaviour of normal human,. therefore, their testimonies were unbelievable---Prosecution witnesses were also belied by site plan wherein blood was taken up from ground and neither any cot having stained with blood was found at the spot by investigating officer nor the same was produced before him---Although where ocular account was disbelieved, recovered articles which carried corroborative value could not substantiate charge against accused because in absence of direct evidence, corroborative evidence by itself could not bring home charge of murder against accused---Conviction and sentence of accused persons was set aside and they were acquitted of the charge---Appeal was allowed.

(b) Criminal trial---

----Evidence---Intrinsic value---Principles---To believe or disbelieve a' witness, all depends upon intrinsic value of statement made by him---Even otherwise, there cannot be universal principle that in every case, interested witness should be disbelieved or disinterested witness be believed; it all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on scene of crime and that he is making true statement---Person who is reported otherwise to be very honest, aboveboard and very respectable in society, if gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept such statement---As a rule of criminal jurisprudence, prosecution evidence is not tested on the basis of quantity but quality of evidence; it is not that who is giving evidence and making statement; what is relevant is what statement has been given; it is not the person but the statement of that person which is to be seen and adjudged.

Malik Saeed Hassan, Senior Advocate Supreme Court for Appellants.

Mian Abdul Qadoos, Advocate Supreme Court for Complainant.

Malik M. Irfan, Additional Prosecutor-General Punjab for the State.

Date of hearing: 1st November, 2010.

SCMR 2011 SUPREME COURT 218 #

2011 SCMR 218

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Aril Hussain and Rehmat Hussain Jafferi, JJ

ZAFAR---Petitioner

Versus

MUHAMMAD ABAD and others---Respondents

Cr. P.L.A. No. 75-K and Criminal Bail Application No. 203 of 2009, decided on 2nd December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan, Art.185(3)---Supreme Court Rules, 1980, O.XXXIII, R.6---Bail granting order---Petition for leave to appeal to Supreme Court against such order---Said petition had been filed 22 days after the prescribed period of limitation---Counsel for the petitioner had no plausible explanation to offer in that regard---Even in the application for condonation of delay filed under O.XXXIII, R.6 of Supreme Court Rules, 1980, no plausible or sufficient cause had been disclosed by the petitioner for not approaching the Supreme Court within time---Petition was dismissed being barred by limitation.

Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

SCMR 2011 SUPREME COURT 219 #

2011 SCMR 219

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, CJ, Ch. Ijaz Ahmad and Ghulam Rabbani, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION---Appellant

Versus

AZIZ-UR-REHMAN CHAUDHRY and others---Respondents

Civil Appeal No. 235-K of 2009, decided on 8th April, 2010.

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan, Art. 212(3)---Implementation of judgment of Service Tribunal---Appeal to Supreme Court---Appeal filed by the employees having been accepted by the Service Tribunal, they filed constitutional petition for implementation of judgment of Service Tribunal; which petition was allowed by the High Court with direction to the employer to implement the judgment of Service Tribunal in letter and spirit---Employer, in its appeal filed before the Supreme Court contended that order of Service Tribunal, was not implementable in view of judgment of Supreme Court (PLD 2006 SC 602)---Validity---After passing of the judgment of the Service Tribunal, it was incumbent upon the employer to have approached Supreme Court by filing petition with a prayer that in view of said judgment of Supreme Court, judgment passed by the Service Tribunal was not sustainable, but employer had not done so---High Court, in circumstances, had rightly granted relief to the employees for implementation of the judgment of the Service Tribunal---Employer was directed to implement the judgment of Service Tribunal in letter and spirit within period of 15 days.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 and Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681 ref.

Khalid Javed, Advocate Supreme Court.

K.A. Wahab, Advocate-on-Record.

Respondent No. 1 in person.

SCMR 2011 SUPREME COURT 222 #

2011 SCMR 222

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Khilji Arif Hussain, JJ

JAMILA KHATOON and others---Appellants

Versus

AISH MUHAMMAD and others---Respondents

Civil Appeal No. 1854 of 2005, decided on 11th November, 2010.

(On appeal from the judgment dated 26-10-2005 of the Lahore High Court, Lahore, passed in C.R.No. 855 of 2004).

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration of title---Limitation---Knowledge of mutation---Proof---Plaintiffs assailed mutation of I4nd in question in favour of defendants, which was alleged to have been attested on the basis of fraud---Judgments and decrees in favour of plaintiffs, passed by two Courts below were set aside by High Court in exercise of revisional jurisdiction---Validity--Plaintiffs filed suit on 20-9-1989 for cancellation of allotment of land in question in favour of defendants on 17-12-1956---Plaintiffs' predecessor-in-interest expired sometime in year, 1951, and since year, 1951 till year, 1989, when the suit was filed, there was nothing on the record to show as to what steps were taken by plaintiffs for the purpose of protecting their interest, in respect of land in question---No averment was made as to how and when disputed mutation first came to the knowledge of plaintiffs except making a vague averment without any particular as to when and how plaintiffs came to know about the mutation of land in question in favour of defendants and what steps were taken by them to protect their interest nor any particular had been given if land in question was allotted to them and what they did to take possession of the same and why they kept quiet for a period of 28 years---Plaintiffs not only failed to prove that defendants had committed fraud in mutation of land in question in their favour in year, 1956 and that the suit filed by plaintiffs was in time---Mutation was effected on 17-12-1956 whereas suit for cancellation was filed in 20-9-1989, and the same was hopelessly barred by time---High Court had rightly dismissed the suit filed by plaintiffs---Appeal was dismissed.

Gul Zarin Kiyani, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Dr. A. Basit, Senior Advocate Supreme Court for Respondents.

Date of hearing: 11th November, 2010.

SCMR 2011 SUPREME COURT 226 #

2011 SCMR 226

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Jawwad S. Khawaja and Mian Saqib Nisar, JJ

NISAR AHMAD---Appellant

Versus

MASOOD AKHTAR and others---Respondents

Civil Appeal No. 1110 of 2009, decided on 26th October, 2010.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 24-6-2009 passed in C.R. No. 638 of 2004).

(a) Electricity Act (IX of 1910)---

----S. 12---Civil Procedure Code (V of 1908), S. 115---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether High Court should have exercised revisional jurisdiction in setting aside well-reasoned judgment of Lower Appellate Court; whether installation of electric poles in the property of someone could be objected to under S.12 of Electricity Act, 1910, and could compensation in money be not considered lawful remedy; whether genuineness or validity of requirement for installation of electricity connection was, at all relevant; whether owner of land could challenge the installation, without challenging compensation order passed by District Coordination Officer; whether litigation initiated by owner of land was based on mala fide and personal vendetta; whether Water and Power Development Authority was not bound to supply electricity connection to consumer; and whether to remove any such hindrance was not the sole responsibility of Water and Power Development Authority.

(b) Electricity Act (IX of 1910)---

----S. 12---Specific Relief Act (I of 1877), Ss. 42 & 54---Supply of electricity---Installations on private land---Principle---Licensee (Water and Power Development Authority), in order to supply electricity to defendant, installed poles and electric wires over the land owned by plaintiff---Trial Court decreed the suit in favour of plaintiff and directed the licensee to remove installations but Lower Appellate Court directed the Authority to pay him compensation---High Court in exercise of revisional jurisdiction set aside the judgment and decree passed by Lower Appellate Court and restored that of Trial Court--Validity---Licensee was barred under S. 12 of Electricity Act, 1910, to lay down any electricity supply line or other work on or over any land without consent of its owner or occupier---In case of objection by the owner or occupier of the land, licensee was obliged to obtain written permission from District Magistrate, before erecting any electric pole or laying aerial line---Where District Magistrate had granted such permission, he was obligated to fix amount of compensation or rent to be paid by licensee to owner or occupier of the land---Such process was to be undertaken before installation, as the Magistrate was required to inquire into merits of objection raised by the owner and permission could be refused in appropriate cases---Fixation of compensation by District Magistrate upon direction of Lower Appellate Court was not in terms of S. 12 of Electricity Act, 1910-Such direction appeared to have been influenced by equitable consideration that removal of poles and power supply to defendant would be unfair and unjust---Without consent of plaintiff and written permission of District Magistrate, Water and Power Development Authority had violated the provision of S. 12 of Electricity Act, 1910---As the findings of Lower Appellate Court were not in accord with statutory provisions, High Court was justified in setting aside the same in its revisional jurisdiction---Supreme Court declined to interfere with judgment and decree passed by High Court---Appeal was dismissed.

National Cement Industries Ltd. v. Karachi Electric Supply Corporation Ltd. 1986 CLC 150; WAPDA v. Pakistan Atomic Energy Commission Employees Cooperative Housing Society Limited PLD 1993 Lah. 237; Hakim Ali v. Member Power WAPDA PLD 2002 Lah. 28; WAPDA v. Ch. Bashir Ahmed 1996 SCMR 1516; Jit Singh v. Gujranwala Electric Company AIR 1929 Lah. 226; S.M.E.S. Corporation Limited v. T.L. Jagannatha Aiyar and others AIR 1960 Madras 374 and Sh. Surat Singh v. Delhi Municipal Corporation AIR 1989 Delhi 51 ref.

Abdul Karim Khan Kundi, Senior Advocate Supreme Court and Ifnan Karim Khan Kundi, Advocate Supreme Court for Appellant.

Gulzarin Kiyani, Senior Advocate Supreme Court and Abdul Rashid Awan, Advocate Supreme Court for Respondent No. 1.

Mehmood A. Sheikh, Advocate Supreme Court for Respondents Nos. 2 and 3.

Date of hearing: 26th October, 2010.

SCMR 2011 SUPREME COURT 232 #

2011 SCMR 232

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Ch. Ijaz Ahmad and Ghulam Rabbani, JJ

Malik MUHAMMAD JAVED---Petitioner

Versus

PROVINCE OF SINDH through Secretary Local Government and others---Respondents

Civil Petition No. 1268 of 2009 and Constitutional Petitions Nos. 53 to 57 of 2009, heard on 5th January, 2010.

Administration of justice---

----Bench and bar, working of---Principle---Petitioner assailed judgment passed in appeal by Division Bench of High Court on the ground that single Judge of High Court was originally counsel for one of the parties to proceedings---Validity---Order assailed before Division Bench of High Court should not have been passed by single Judge---Judgment passed by single Judge as well as subsequent judgment passed in appeal by Division Bench of High Court were set aside and case was remanded to High Court for disposal afresh---Appeal was allowed.

Syed Iftikhar Hussain Gillani, Advocate Supreme Court for Petitioner.

Raja Abdul Ghafoor, Advocate-on-Record for the Government of Sindh.

Zulfiqar Ahmed Bhutta Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for the KBCA.

SCMR 2011 SUPREME COURT 235 #

2011 SCMR 235

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ

CHIEF ADMINISTRATOR AUQAF---Appellant

Versus

ALLAH BAKHSH (decd) through LRs and another---Respondents

Civil Appeal No. 2 of 2010, decided on 1st December, 2010.

(On appeal against the judgment dated 18-12-2000 passed by Lahore High Court, Lahore in FAO No. 214 of 1985).

(a) Punjab Waqf Properties Ordinance (IV of 1979)---

----S. 7---Taking over of wakf property by Chief Administrator of Auqaf by notification---Notification under S.7, Punjab Wakf Properties Ordinance, 1979 must also be served on the person in possession of the property which the Chief Administrator of Auqaf had declared to be Wakf.

Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab PLD 1977 SC 639 fol.

(b) Punjab Waqf Properties Ordinance (IV of 1979)---

----Ss. 11 & 7---Taking over of wakf property by Chief Administrator of Auqaf by notification---No evidence on record was available to show that the property was dedicated or had been used for purposes of wakf since the time immemorial---Possession of the respondents was admitted and they were occupying the same since several hundred years---Department (appellant) had not been able to produce any evidence on record to show that the property in possession of the respondents had been `waqf' within meaning of the Punjab Wakf Properties Ordinance, 1979 and law preceding it---Concurrent findings of fact were unexceptionale and not against the settled law---Supreme Court dismissed the appeal of the department.

Muhammad Ali v. Chief Administrator of Auqaf 1972 SCMR 297; Elahi Bakhsh v. Chief Administrator Waqf Property 1982 SCMR 160; Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab PLD 1977 SC 639 and Province of East Pakistan v. Hasan Askary PLD 1971 SC 82 ref.

Nasim Ahmed Khan, Advocate Supreme Court and Shabbir Ahmed Khan, Advocate Supreme Court for Appellant.

Muhammad Salim, Advocate Supreme Court for Respondents.

SCMR 2011 SUPREME COURT 239 #

2011 SCMR 239

[Supreme Court of Pakistan]

Present: Javed Iqbal and Anwar Zaheer Jamali, JJ

MUHAMMAD SADIQ (decd.) through L.Rs. and others---Petitioners

Versus

MUSHTAQ and others---Respondents

C.P.L.A. No. 1292-L of 2007, decided on 7th April, 2010.

(On appeal from the order of Lahore High Court, Lahore dated 21-5-2007 passed in Writ Petition No. 3280 of 2003).

Specific Relief Act (I of 1877)---

----S. 42---Pakistan Administration of Evacuee Property Act (XII of 1957), S. 41---Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 22 & 25---Civil Procedure Code (V of 1908), O. VII, R.11---Constitution of Pakistan, Art. 185(3)---Rejection of plaint---Bar against remedy before Civil Courts---Plaintiff assailed allotment of suit property to defendants on the ground that the same was not evacuee land and was wrongly allotted by Settlement Authorities---Lower Appellate Court and High Court concurrently rejected the plaint filed by plaintiff on the ground that the same was barred under law---Plea raised by plaintiffs was that after repeal of Settlement Laws, the only remedy available to plaintiffs against illegal allotment of land was through a declaratory suit---Validity---Remedy before Civil Court was barred under S. 41 of Pakistan Administration of Evacuee Property Act, 1957, and Ss. 22 and 25 of Displaced Persons (Land Settlement) Act, 1958---Suit instituted by plaintiffs was time-barred, as the suit-land was provisionally allotted to ancestors of defendants in year, 1952-53 and thereafter whole process of such transfer in their favour was completed much before repeal of Settlement Laws---Order of rejection of plaint passed by revisional Court was based on proper application of relevant provisions of law and was unexceptionable---High Court in exercise of its jurisdiction under Art. 199 of the Constitution, while examining the grievance of petitioners had rightly upheld findings of revisional Court against plaintiffs regarding rejection of plaint, as the suit was barred under S. 41 of Pakistan Administration of Avacuee Property Act, 1957 and Ss. 22 and 25 of Displaced Persons (Land Settlement) Act, 1958---Supreme Court declined to interfere in the order passed by High Court---Leave to appeal was refused.?

Hamid Ali Mirza, Advocate Supreme Court for Petitioners.

Malik M. Jamail Awan, Advocate Supreme Court for Respondents.

Date of hearing: 7th April, 2010.

SCMR 2011 SUPREME COURT 243 #

2011 SCMR 243

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, CJ Mian Shakirullah Jan and Nasir-ul-Mulk, JJ

Malik NAVEED AHMED---Petitioner

Versus

Mst. AASIA and others---Respondents

Civil Petition No. 1562 of 2010, decided on 15th November, 2010.

(On appeal against the order dated 23-6-2010 passed by Lahore High Court, Lahore, in Writ Petition No. 7654 of 2010).

Muslim Family Laws Ordinance (VIII of 1961)---

---S. 9---Constitution of Pakistan, Art. 185(3)---Application before Arbitration Council for effecting recovery of maintenance for wife---Limitation---Leave to appeal was granted by Supreme Court, inter cilia, to examine whether the application before Arbitration Council for effecting recovery of maintenance for wife under section 9 of the Muslim Family Laws Ordinance, 1961, shall be governed by Art.181 or Art. 120 of the Limitation Act, 1908; and that the revision filed on 21-5-2009 by the petitioner before the District Revenue Officer against the order of Arbitration Council dated 19-1-2009 was barred by time--Supreme Court observed that limitation created a right in favour of the opponent, therefore, interference in the order of the Arbitration Council would be called for in the interest of justice---In pursuance of the order of Supreme Court an amount of Rs. 1,700,000, as determined by the Arbitration Council, had been deposited with the Registrar---Leave to appeal having already been granted, therefore, pending decision of the appeal the respondent shall be entitled to draw Rs. 850,000 from thee Registrar who, after following the procedure, shall disburse said amount to her and balance of Rs.850,000 shall be kept in profit yielding account.

Abdur Rashid Awan, Advocate Supreme Court with attorney of Petitioner.

Respondents in person.

Date of hearing: 15th November, 2010.

SCMR 2011 SUPREME COURT 244 #

2011 SCMR 244

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Syed Zawwar Hussain Jaffery, JJ

CHIEF EXECUTIVE, HESCO (WAPDA), HYDERABAD and another---Petitioners

Versus

SIKANDAR ALI KHAWAJA---Respondent

Civil Petition No.981 of 2008, decided on 28th May, 2009.

(Against the judgment, dated 30-4-2008 passed by Federal Service Tribunal, Islamabad in Appeal No. 1725(R)(C.E.) of 2004).

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3 & S---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan, Art.212(3)---Compulsory retirement from service---Employee of WAPDA---Illegal gratification taken by appellant, charge of---Issuance of show-cause notice by Chief Engineer on basis of fact finding enquiries---Conversion of such penalty by Service Tribunal into reduction of time scale by two steps for three years without cumulative effect---Validity---Departmental authority had not held any regular inquiry to prove charge against appellant---Chief Engineer was competent authority to issue show-cause notice to appellant---Appellant had not challenged punishment awarded to him by Service Tribunal, which reflected his involvement in such charge---Impugned judgment was based on proper appreciation of material available on record---Supreme Court dismissed petition for leave to appeal in circumstances.

Syed Almas Haider Kazmi, Advocate Supreme Court and Syed Zafar Abbas Naqvi, Advocate-on-Record for Petitioner.

Abdul Rahim Bhatti, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Respondent.

SCMR 2011 SUPREME COURT 247 #

2011 SCMR 247

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

MUHAMMAD ALI GOHAR ZAIDI---Appellant

Versus

HOUSE BUILDING FINANCE CORPORATION and others---Respondents

Constitutional Petition No.403-K of 2009, decided on 29th December, 2009.

House Building Finance Corporation Act (XXVIII of 1952)---

----Ss. 41 & 42---Constitution of Pakistan, Art 212(3)---Leave to appeal was sought against judgment passed by Service Tribunal, whereby miscellaneous petition filed by the petitioner against abatement of his appeal was dismissed for want of jurisdiction---Claim of the petitioner was that Registrar of the Service Tribunal had no authority to declare that appeal had been abated; and that the Tribunal was required to pass separate order after providing opportunity to the parties---Petitioner further contended that Service Rules of the employer Corporation being statutory, his petition was maintainable before Service Tribunal---Validity---Section 41 of House Building Finance Corporation Act, 1952, provided that Government could make Rules consistent with said Act for the purpose of giving effect to the provisions of the Act---Section 42 of said Act had empowered the Board to make regulations consistent with the Act to provide for all matters for which provision was necessary or expedient for the purpose of giving effect to the provision of the Act including Regulations in respect of the terms and conditions of service---Rule making power had been conferred upon the Board for the management and control of day to day business of the Corporation---Impugned judgment of the Service Tribunal being well reasoned, called no interference by the Supreme Court---Leave to appeal was refused.

Khawaja Riaz v. Chairman Pakistan Space and Upper Atmosphere Research Commission, Karachi 2007 PLC (C.S.) 1275; Pakistan Red Cross Society and others v: Syed Nazar Gillani PLD 2005 SC 805; Chairman WAPDA and 2 others v. Syed Jamil Ahmed 1993 SCMR 342; National Bank of Pakistan v. Manzoor Hassan 1989 SCMR 842 and Cadet College Kohat and others v. Muhammad Shoaib Qureshi PLD 1984 SC 170 ref.

Masood Mukhtar Naqvi, Advocate Supreme Court and Izhar Alam Farooqui, Advocate-on-Record for Appellant.

Nemo for Respondents.

SCMR 2011 SUPREME COURT 249 #

2011 SCMR 249

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Jawwad S. Khawaja and Rahmat Hussain Jafferi, JJ

MUHAMMAD RAMZAN---Appellant

Versus

MUHAMMAD QASIM---Respondent

Civil Appeal No. 1441 of 2004, decided on 12th October, 2010.

(Appeal against the judgment of Lahore High Court, Rawalpindi Bench dated 18-3-2004 passed in Civil Revision No. 136 of 2000).

Specific Relief Act (I of 1877)---

----S.12--- Limitation Act (IX of 1908), Art. 113--- Specific performance of agreement to sell--- Words "date fixed" in Art. 113 of Limitation Act, 1908---Limitation, computation of---Dispute between the parties was with regard to starting point of period of limitation for filing suit for specific performance of agreement to sell, as actual date of calendar month for performance of promise was not mentioned---Validity---When agreement specified month and not date of the month in, or by which, the promisor was to perform his part of agreement, it could be performed on any day of the month---Final day of performance of a contract would be the last date of calendar month specified for its performance and the same would be the "date fixed" for the purpose of Art. 113 of Limitation Act, 1908, from which period of limitation of three years was to run for filing of a suit for specific performance---Such must be so as the cause of action would arise to an aggrieved party only upon expiry of the period fixed for performance of the contract and thus no suit would lie before it---As the contract was to be performed by January, 1988, therefore, 31st day of that month was the last day for its performance---Plaintiff could bring his suit by 31-1-1991, and the suit brought by him on 17-2-1991, was on the face of it barred by time---Plaintiff did not file any application for condoning its delay, therefore, High Court rightly dismissed the suit filed by plaintiff on the ground of limitation---Supreme Court declined to interfere in the judgment and decree passed by High Court against plaintiff--- Appeal was dismissed.

Inam Naqshband v. Haji Sheikh Ijaz Ahmad PLD 1995 SC 314; Ramzan v. Smt. Hussaini AIR 1990 SC 529 and Chet Ram Vashisht (Deceased) through L.Rs. v. Ram Chander Goel AIR 2000 Delhi 96 ref.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Appellant.

Gulzarin Kiyani, Senior Advocate Supreme Court for Respondent.

Date of hearing: 12th October, 2010.

SCMR 2011 SUPREME COURT 253 #

2011 SCMR 253

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Khilji Arif Hussain and Khalil-ur-Rehman Ramday, JJ

PEARL CONTINENTAL HOTEL, KARACHI WORKERS UNION---Appellants

Versus

MEMBER, N.I.R.C. and another---Respondents

Civil Appeal No.1661 of 2008, decided on 7th April, 2010.

(On appeal from the impugned judgment dated 13-3-2002 passed by High Court of Sindh in C.P. No.D-2550 of 2001).

Industrial Relations Ordinance (XXIII of 1969)---

----S. 25-A--- Constitution of Pakistan, Art. 212(3)--- Grievance petition---Appellant union approached the Labour Court under S.25-A of Industrial Relations Ordinance, 1969---Except the case of one worker, remaining cases were still pending on the file of the Labour Court for final decision and arguments had been heard and the judgment was likely to be pronounced---Workers whose case had been dismissed by the Labour Court had approached the Labour Appellate Tribunal---Counsel for appellant had stated that the case be disposed of with the observation that' let the Labour Court decide the same expeditiously and same direction should be given to Labour Appellate Tribunal---Counsel for the respondents having no objection, appeal was disposed of accordingly---Supreme Court directed that Labour Court as well as Labour Appellate Tribunal should dispose of the case expeditiously within a period of one month---Order accordingly.

Syed Shahanshah Hussain, Advocate Supreme Court for Appellant.

Mehmood A. Ghani, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.2.

Respondent No. 1 Ex parte.

SCMR 2011 SUPREME COURT 255 #

2011 SCMR 255

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmad and Mahmood Akhtar Shahid Siddiqui, JJ

POULTRY FEEDS CONTAINING PIG MEAT: In re.

Civil Miscellaneous Nos. 2482 of 2007 and Suo Motu Case No. 15 of 2007, decided on 7th July, 2009.

Customs Act (IV of 1969)--

---Ss. 32 & 156(4)---Constitution of Pakistan, Art. 184(3)---Constitutional jurisdiction of Supreme court---Import of poultry feed containing traces of pork meat/bones---Supreme Court, in exercise of suo motu powers issued notices to the importers and authorities regarding import of poultry feed containing traces of pork meat/bones and disposed of the matter in the terms that importers against whom penalty was imposed under S.156(4) read with S.32 of Customs Act, 1969 as well as for violation of import policy, would make payment of the same to Customs department; that customs department or importers would not further agitate the matter either within the hierarchy of Customs Act, 1969, or before High Court or any forum and orders of adjudication would be treated final for all intents and purposes; that importers who could manage re-export of consignment would do the same on their own responsibility, after taking permission from concerned quarters, within the period of three weeks, failing which all consignment which was dumped in different places would be destroyed under the supervision of responsible officers of customs department as well as importers, subject to payment of damages etc. by importers individually and that undertaking had to be given from importers against whom penalty was imposed that they would be careful in future and if there was any violation, strict action would be taken against them according to law, which entailed punishment---Supreme Court directed that such exercise should be completed within four weeks under the supervision of Member Customs Federal Board of Revenue.

Sardar Muhammad Latif Khan Khosa, Attorney-General for Pakistan and Dr. Riffat Ayesha Chief Nutritionist, NIH on Court notice.

Raja Abdul Ghafoor, Advocate Supreme Court/Advocate-on Record, Mnnir Qureshi, Member (Customs), Mumtaz Ahmed; Member (Legal).

Najmul Hassan Kazmi, Senior Advocate Supreme Court for Punjnad Feed.

Tariq Mehmood, Advocate Supreme Court for National Feed.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Olympia Feed, Shahzor Feeds, Shabbir Edible Feeds, Ghazi Brothers and A One Feeds.

Taufiq Asif, Advocate Supreme Court for Sadiq Brothers and Chakwal Feeds.

M. Bilal, Senior Advocate Supreme Court for Syed Fish.

Nemo for others.

SCMR 2011 SUPREME COURT 259 #

2011 SCMR 259

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Jawwad S. Khawaja, JJ

IMTIAZ ALI and another---Applicants

Versus

HABIB BANK LIMITED---Respondent

H.R. Case No.710-P of 2009, decided on 12th January, 2010.

(On application of Imtiaz Ali and another, former employees of the Habib Bank Limited).

Constitution of Pakistan---

----Art. 184---Retrenchment of employees under a Scheme---Payment of additional sum to retrenched employees as ex-gratia payment---Case initiated on application of former employees of the Bank, pertained to the retrenchment of 2343 employees made pursuant to a Retrenchment Scheme for "all Manual/non-clerical Employees" of the Bank---Representatives of the retrenched employees and management of the Bank, entered into negotiation for some settlement, whereby the Bank agreed to pay an additional sum as ex-gratia payment to retrenched employees---Representatives of the retrenched employees had left to the Supreme Court to determine the reasonableness of the additional compensation which was fair in the circumstances---Offer made by the Bank, was duly accepted and retrenched employees would be paid additional ex-gratia payment in accordance with terms of the offer.

Applicants in person.

S.M. Zafar, Senior Advocate Supreme Court, Ali Zafar, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Abdul Rahim Bhatti, Advocate Supreme Court (as amicus curiae) on Court's notice.

SCMR 2011 SUPREME COURT 260 #

2011 SCMR 260

[Supreme Court of Pakistan]

Before Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

Ms. SALMA MOOSAJEE and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.P.L.As. Nos.505-K and 581-K of 2009, decided on 4th December, 2009.

Constitution of Pakistan---

----Art. 185(3)---Leave to appeal was granted by Supreme Court to examine whether the claim of the petitioners on merit had been rightly rejected, despite effective applicability of the notification, when the petitioners were under the employment of respondents---Grant of leave, however, was subject to limitation, which would be examined and decided at the time of hearing of appeals.

S. Safdar Hussain, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner (in Petition No.505-K of 2009).

Ansari Abdul Latif, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner (in Petition No.581-K of 2009).

Nemo for Respondents.

SCMR 2011 SUPREME COURT 261 #

2011 SCMR 261

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiquui, and Asif Saeed Khan Khosa, JJ

M. ANWAR SIDHU---Appellant

Versus

NATIONAL BANK OF PAKISTAN and others---Respondents

Civil Appeal No.748/L of 2009, decided on 29th June, 2010.

(Against the judgment of the Federal Service Tribunal, dated 7-5-2001 passed in Appeal No.2044/L of 1998).

(a) Service Tribunals Act (LXX of 1973)---

----S. 4--- Constitution of Pakistan, Art. 212(3)--- Dismissal front service---Manager of National Bank of Pakistan---Misappropriation of Rs.2000, charge of---Dismissal of appeal by Service Tribunal---Appellant's plea that he had an unblemished service record of more than 24 years in Bank; that he was not given opportunity of personal hearing either during inquiry proceedings or at stage of departmental appeal; and that in similar circumstances, Bank had allowed person concerned to go on compulsory retirement rather than face stigma of dismissal from service---Validity---Supreme Court granted leave to appeal to consider questions as to whether appellant was given proper opportunity to defend himself; and whether compulsory retirement was a normal sentence awarded to him.

(b) Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan, Art. 212(3)--- Dismissal from service---Manager of National Bank of Pakistan---Misappropriation of Rs.2000, charge of---Dismissal of appeal by Service Tribunal---Validity---Bank contended that on a number of occasions, appellant had withdrawn amount from certain accounts without a proper cheque, but had re-deposited same; and that no account holder had appeared during inquiry in support of even temporary embezzlement---Bank could not deny that appellant had an unblemished service record spreading over 26 years---Charge sheet framed against appellant did not find mention allegation of personal gain by him or loss to Bank---Withdrawal of various amounts from different accounts could have made out a case against appellant for temporary retention of amount, but there was no finding that he made any personal gain or caused any loss to Bank---Had appellant been granted copy of enquiry report and granted opportunity of personal hearing, then he would have explained bona fide of his acts/omissions, which had not been done---Penalty imposed on appellant was not proportionate to gravity of charge levelled---Appellant was not seeking de novo enquiry or reinstatement in service---Supreme Court set aside penalty of dismissal from service and converted same into compulsory retirement.

Ismail Brothers v. Keval Ram PLD 1981 SC 545 and Siddique Akbar v. Mian Abdul Majeed 2000 PLC (C.S.) 136 ref.

Federation of Pakistan through Secretary Finance v. Khalid Javed 2009 SCMR 720 rel.

Hafiz Tariq Nasim, Advocate Supreme Court and Mahmudul Islam Advocate-on-Record for Appellant.

Mian Qamar uz Zaman, Advocate Supreme Court and Ch. Talib Hussain, Advocate-on-Record for Respondents Nos. 1 to 4.

SCMR 2011 SUPREME COURT 265 #

2011 SCMR 265

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tassaduq Hussain Jillani, Raja Fayyaz Ahmed and Anwar Zaheer Jamali, JJ

Miss ZUBAIDA KHATOON---Appellant

Versus

Mrs. TEHMINA SAJID SHEIKH and others---Respondents

Civil Appeal No. 780 of 2006, decided on 9th December, 2010.

(a) Constitution of Pakistan---

----Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether High Court was justified to substitute findings recorded by Departmental Promotion Committee relating to promotion of petitioner and respondent.

(b) Service Tribunals Act (LXX of 1973)---

----S.4---Appeal to Service Tribunal---Principles---Any civil servant who is aggrieved by an order with respect to terms and conditions of his service has a right of appeal before appropriate Tribunal established for such purpose, within the period prescribed---No right of appeal is provided to a civil servant against order of departmental authority determining "fitness" or otherwise of a person to be appointed or "hold a particular post" or to be "promoted" to a higher post or grade.

----S.4---Constitution of Pakistan, Arts. 199 & 212---Seniority---Question of eligibility---Consideration---Jurisdiction of High Court---Notification of promotion of appellant was set aside by High Court under constitutional jurisdiction and authorities were directed to promote the respondent---Validity---Promotion Committee seized of issue of inter se seniority of parties was not considering question of eligibility of respondent to be promoted or to hold certain post but her fitness with reference to service record and having examined comparative merits recommended appellant to be promoted and to be senior to respondent---In terms of recommendations made by Promotion Committee, notification was issued which was annulled by High Court---Against such notification of promotion, respondent had no right of appeal in view of specific bar contained in clause of proviso to S.4(1) of Service Tribunals Act, 1973---Judgment passed by High Court was not violative of mandate of Art. 199 read with Art. 212 of the Constitution, as the respondent could not have challenged the notification in question before Service Tribunal in view of specific bar contained in S. 4(1) of Service Tribunals Act, 1973, and main grievance of respondent was that her service record was not considered while deciding the question of her fitness to be promoted---After annulling notification which was assailed before High Court, the court could not have directed promotion of respondent and instead should have left the matter to be decided by Promotion Committee afresh as that authority was competent to pass appropriate order after de novo exercise---Supreme Court upheld the judgment passed by High Court to the extent of annulling the notification of promotion of appellant and case was remanded to concerned Promotion Committee to decide the matter afresh---Appeal was allowed.

Abdul Malik v. Sabir Zameer Siddiqui 1991 SCMR 1129; Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539 and Muhammad Iqbal v. Executive District Officer (Revenue) 2007 SCMR 683 distinguished.

(d) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability--- Factual controversy---Scope---Plea raised by respondent was that High Court could not undertake a factual inquiry---Validity---High Court was not recording any new evidence but was proceeding on the basis of admitted facts and if having examined the admitted facts, it had come to the conclusion that authority had passed the order in colourable exercise of powers conferred on it, or an authority having power to promote or appoint to a particular post had done so against the law or without jurisdiction or while doing so as for mala fide reasons had not taken into consideration the relevant record, High Court could cone in aid of person aggrieved to redress the wrong---Petition was maintainable in circumstances.

Abdul Ghafoor, Supervisor/Inspector, N.H.A. v. National Highway Authority 2002 SCMR 574 ref.

Ch. Afrasiab Khan, Advocate Supreme Court for Appellant.

M. Munir Peracha, Advocate Supreme Court for Respondent No. 1.

Fawad Saleh, Advocate Supreme Court for Respondents Nos. 2 and 3.

Date of hearing: 9th December, 2010.

SCMR 2011 SUPREME COURT 276 #

2011 SCMR 276

[Supreme Court of Pakistan]

Present: Anwer Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

SHAFI MUHAMMAD SAAND---Appellant

Versus

GOVERNMENT OF SINDH and another---Respondents

Civil Appeal No.1779 of 2008 arising out of C.P.L.A. No.267-K of 2008, decided on 14th June, 2010.

(Against order and judgment, dated 31-1-2008 passed by the learned Sindh Service Tribunal at Karachi in Appeal No.368 of 2005).

Sindh Service Tribunals Act (XV of 1973)---

----S. 4---Constitution of Pakistan, Art.212---Appeal before Service Tribunal against order imposing minor penalty---Dismissal of appeal---Appellant who was dismissed from service, was reinstated in service by imposing some minor penalty---Subsequently, the appellant was retired from service after attaining the age of superannuation---During the process of recovery of pensionary benefits, appellant came to know that penalty of recovery of amount was imposed upon him---Appellant alleged that he was penalized without serving a charge-sheet, holding inquiry or giving him a show-cause notice---Appeal filed by the appellant before Service Tribunal had been dismissed---Validity---In view of order of reinstatement whereby minor penalty was imposed on appellant, it could not be said that minor penalty was result of separate allegation for which a separate departmental inquiry should have been initiated---Service Tribunal had examined all aspects of the case properly---No illegality or irregularity existed in the impugned order and same did not require any interference.

Ansari Abdul Latif, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Appellant.

Abdul Fateh Malik, Additional Advocate-General for the State.

Date of hearing: 14th June, 2010.

SCMR 2011 SUPREME COURT 279 #

2011 SCMR 279

[Supreme Court of Pakistan]

Present: Javed Iqbal and Anwar Zaheer Jamali, JJ

ANJUMAN FRUIT ARHTIAN and others---Petitioners

Versus

DEPUTY COMMISSIONER, FAISALABAD and others---Respondents

Civil Petition No. 265-L of 2005, decided on 29th March, 2010.

(On appeal from the order dated 14-12-2004 passed by the Lahore High Court, Lahore in Writ Petition No. 5007 of 2000).

Constitution of Pakistan---

----Arts. 199 & 185(3)---Constitutional jurisdiction of High Court---Scope---Disputed question of fact---Plea of . fraud and forgery---Petitioners assailed order in question before High Court in exercise of constitutional jurisdiction on the plea of fraud and forgery---Validity---It was mandatory and obligatory for a party invoking constitutional jurisdiction to establish a clear legal right which should be beyond any doubt and controversy---In the light of alleged forgery and fraud, legal right and entitlement of petitioner were controversial---Disputed questions of fact could not be decided in constitutional jurisdiction---High Court had rightly declined to ,exercise his constitutional jurisdiction in view of various controversial questions of law and facts which could only be resolved on the basis of evidence which could not be recorded in exercise of constitutional jurisdiction---Leave to appeal was refused.

Ataur Rehman Khan v. Dost Muhammad 1986 SCMR 598; Muhammad Akhtar v. President Cantonment Board, Sialkot Cantt. 1981 SCMR 291; Mian Muhammad v. Govt. of West Pak. 1968 SCMR 935; Abdur Rashid Bhhiya v. Province of East Pak PLD 1970 Dacca 633; Zuhra Begum v. Sajjad Hussain 1971 SCMR 697; Landale and Morgan (Pak) Ltd. v. Chairman, Jute Board Dacca 1970 SCMR 853; Mahboob Alam v. Secretary to Govt. of Pak. 1969 SCMR 217; Umar Daraz v. Muhammad Yousaf 1968 SCMR 880; Saghir Ali v. Mehar Din 1968 SCMR 145; Abdur Rehman Khan v. Deputy Commissioner Jessore PLD 1968 Dacca 367; Lutfonnessa Ibrahim v. Province of East Pak. PLD 1969 Dacca 779; Mainuddin Ahmed v. Delimitation Officer PLD 1965 Dacca 263; Province of East Pakistan v. Kshiti Dhar Roy PLD 1964 SC 636; Abdur Rab Choudhury v. Registrar of Joint Stock Companies PLD 1960 Dacca 541; Md. Nur Hussain v. Province of East Pak PLD 1960 Dacca 31; Chand Miah v. IT and Sales Tax Officers .PLD 1960 Dacca 523; Parbatipur Industries v. Chief Secretary E. Pak 12 DLR 255; Md. Noor Hussain v. Province of E.Pak. 11 DLR 367; State Life Insurance Corp. of Pak. v. Tobacco Co. PLD 1983 SC 280; Md. Ibrahim v. Prov. of East Pak. 15 DLR 703; Benedict F.B. Souza v. Karachi Building Control Authority 1989 SCMR .918; Karachi Municipal Corporation v. Hargina Salt Chemicals 1988 SCMR 1259; Ehsanul Haq Kiani v. Allied Bank of Pakistan, Karachi 1984 SCMR 963; Mian Muhammad v. Municipal Committee 1983 SCMR 732; N.M. Khan v. Chief Settlement and Rehabilitation Commissioner 1970 SCMR 158; Muhammad Ibrahim Mondal v. Province of East Pakistan PLD 1964 Dacca 522; Rizwan Co-operative Society v. Custodian of Evacuee Property 1978 SCMR 449; Muhammad Sadiq v. Commissioner, Rawalpindi Division 1973. SCMR 422; Musharofa Begum v. Nayyar Hussain 1984 SCMR 377; Muhammad Ishaq v. Abdul Haque 1974 SCMR 28; Niaz Muhammad v. Abdul Aziz 1982 SCMR 883; Abdul Rahman v. Said Muhammad 1982 SCMR 372; Ejaz Hussain v. Messrs Hotel Jabees Ltd. 1990 PLC 643; Allah Bakhsh and another v. Muhammad Ismail and others 1987 SCMR 810; Ghulam Rasool v. Returning Officer, NA-196 PLD 1985 Kar. 315; Golden Industries Ltd. v. Province of Sindh PLD 1983 Kar. 76; Lipton (Pakistan) Ltd. Karachi v. Govt. of Sindh PLD 1977 Kar. 714 rel.

Khawaja Saeed-uz-Zafar, Advocate Supreme Court for Petitioners.

Faisal Zaman Khan, Additional Advocate-General and Mehmood-ul-Islam, Advocate-on-Record for Respondents Nos. 1 to 5.

Naveed Inayat Malik, Deputy Attorney-General on Court Notice.

Date of hearing: 29th March, 2010.

SCMR 2011 SUPREME COURT 284 #

2011 SCMR 284

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Ghulam Rabbani JJ

MUHAMMAD BUX (decd) through Legal Heirs and others---Appellants

Versus

ARMY WELFARE TRUST and others---Respondents

Civil Appeal No. 53-K of 2009, decided on 23rd June, 2010.

(On appeal from the order/judgment dated 21-2-2007/6-8-2007 passed by High Court of Sindh, Bench at Sukkur in Civil Review Application No. 26 of 1994).

(a) Qanun-e-Shahadat (10 of 1984)---

----Art. 117---Plaintiffs claiming preferential right to have suit land allotted to them as tenants thereof---Proof---Onus was on plaintiffs to establish that they were tenant of suit land---Two plaintiffs were brothers and other two were sons of first plaintiff, who in his evidence did not say a single word that any of his brothers were tenant of suit land-Oral version of first plaintiff was not corroborated by any documentary or other oral evidence---Oral version of first plaintiff was denied by defendant---Held: plaintiffs failed to make out case in their favour, in circumstances.

(b) Constitution of Pakistan---

----Art. 185---Appeal to Supreme Court---Concurrent findings of fact by Appellate and High Courts against appellant---Failure of appellant to point out any tangible material to disturb such findings---Supreme Court dismissed appeal in circumstances.

Naraindas C. Motiani, Advocate Supreme Court for Appellants.

Abdul Qadir Khan, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Respondent No. 1.

Nemo for Respondents Nos. 2 to 4.

Date of hearing: 23rd June, 2010.

SCMR 2011 SUPREME COURT 287 #

2011 SCMR 287

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Zia Perwez, JJ

SHEHRI-CBE and others---Petitioners

Versus

CITY DISTRICT GOVERNMENT, KARACHI and others---Respondents

Civil Petition No. 210-K of 2008, decided on 19th August, 2008.

(On appeal from the order dated 13-2-2008 of High Court of Sindh, Karachi passed in Constitution Petition No. D-17 of 2007).

Constitution of Pakistan---

----Art. 185(3)---Petition for leave to appeal to Supreme Court---Factual controversies---Use of land-Determination-Contention of petitioners was that land in question was to be utilized for recreational facilities. enjoyed by two million residents of the area---Validity---Matter required recording of evidence before arriving at any conclusion---Proceedings in petition for leave to appeal to be decided on admitted set of facts and could not be equated with proceedings in a suit attracting entirely different procedure for recording of findings on issues after examining the evidence---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Secretary to the Government of the Punjab Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415 and Haji Mittha Khan v. Muhammad Younis and others 1991 SCMR 2030 ref.

Naeemur Rehman, Advocate Supreme Court for Petitioners.

Manzoor Ahmed, Legal Advisor, C.D.G.K. for Respondent No.1.

Shafi A. Ansari, Hon. Secretary, K.M.C. Officers Cooperative Housing Society, Karachi for Respondent No. 3.

Date of hearing: 19th August, 2008.

SCMR 2011 SUPREME COURT 290 #

2011 SCMR 290

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Ghulam Rabbani, JJ

BASHIR AHMED---Petitioner

Versus

Messrs ROOTS SCHOOL NETWORK through Administrator/owner and others---Respondents

Civil Petition No. 106-K of 2010, decided on 7th April, 2010.

(On appeal from the judgment dated 24-12-2009 passed by the High Court of Sindh, Karachi in C.P. No. S-14 of 2009).

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 16(1)(2)---Constitution of Pakistan, Arts. 185(3)---Tentative rent order---Deposit of rent by tenant in miscellaneous rent application instead of main rent case---Plea of tenant that such default was technical and not wilful as he deposited rent at landlord's request in rent application---Order of Rent Controller holding such default to be wilful, deliberate and contumacious upheld by Appellate Court, but set aside by High Court---Validity---Whether such default was technical or not being a question of fact liable to be answered on basis of record---Such plea apart from being dubious and disputed showed a conscious disregard for rent order---Tenant's plea justifying himself in acceding to landlord's request instead of complying with terms of rent order was not acceptable---Not appropriate for Supreme Court in exercise of jurisdiction under Art. 185(3) of the Constitution to reappriase circumstance of case and substitute its own opinion in place of well considered views expressed by pent Controller and Appellate Court---Such default was wilful, "deliberate and contumacious---High Court did not have a valid justification for setting aside orders of Rent Controller and Appellate Court---Supreme Court set aside order of High Court and restored/affirmed that of Rent Controller and Appellate Court.

Dr. Aftab Ahmed Khan v. Mst. Zaibun Nisa 1998 SCMR 2085 ref.

(b) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 16(2)---Tentative rent, default in payment of---Whether such default was technical or not, was a question of fact liable to be answered on basis of record.

----Each precedent enunciates principles, which are based on the circumstances of case being examined by court.

(d) Constitution of Pakistan---

----Art. 199---Orders passed by courts vested with statutory powers in exercise of their functions---Factual determination or interference in such orders by High Court---Scope stated.

While exercising constitutional jurisdiction under Article 199, the High Court will not make factual determination or interfere in orders passed by competent courts vested with statutory powers in the exercise of their functions, unless there is a jurisdictional error or other legal infirmity such as arbitrariness etc. in the order assailed before the High Court.

Nazar Akbar, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Petitioner.

Muhammad Yaseen Azad, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Respondents.

Date of hearing: 7th April, 2010.

SCMR 2011 SUPREME COURT 295 #

2011 SCMR 295

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

SECRETARY REVENUE DIVISION, CBR/FEDERAL BOARD OF REVENUE, ISLAMABAD---Petitioner

Versus

GUL MUHAMMAD and others---Respondents

Civil Petitions Nos. 1083, 58 to 60, 443 and 444 of 2010, decided on 15th July, 2010.

(On appeal from the judgment dated 29-3-2010 in Appeal No.89(P)CS/2005, 17-10-2009 in Appeal No. 32(R)CS/2003, dated 10-10-2009 in Appeal Nos. 90(P)CS/2005 and 465(P)CS/2008, dated 22-12-2009 in Appeals Nos. 816(RCs/2005 and 343(R)CS/2006 passed by the Federal Service Tribunal, Islamabad).

Constitution of Pakistan---

----Art.212(3)---Civil service---Promotion on the Policy of best of best---Plea of petitioner/Authority to deny promotion to the employees on the Policy of best of best had not been accepted by the Service Tribunal---Validity---Establishment Division should bring more objectivity in the criteria for excellence and comparative merit and give more specific details and well argued reasons for denying promotion to an officer who was eligible and fulfilled the requisite criteria, length of service, training requirement, relevant experience etc.--- Relief, in circumstances had been rightly granted by Service Tribunal to the employees---Petitions being without substance were dismissed with costs, because Authority knew that Supreme Court had already held such view, and same point had again been agitated without any justification.

Sardar Muhammad Ghazi, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Petitioner.

Abdul Rahim Bhatti, Advocate Supreme Court for Respondents (in Civil Petitions Nos. 59 and 60 of 2010).

Nemo for Respondents in other cases.

SCMR 2011 SUPREME COURT 298 #

2011 SCMR 298

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ

Messrs KOHINOOR LOOMS LIMITED---Petitioner

Versus

MCB BANK LIMITED---Respondent

Civil Petition No. 145-L and C.M.A. No. 62-L of 2010, decided on 3rd March, 2010.

(On appeal against the order dated 4-1-2010 passed by Lahore High Court, Lahore in EFA No.3 of 2010).

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 22(6)---Constitution of Pakistan, Art.185(3)---Counsel for the petitioner had contended that High Court was not justified in holding that order passed by Banking Judge was not appealable and that reserved price of the property as fixed by the High Court was presumptuous and not in accord with its market value---Leave to appeal was granted by Supreme Court to consider said issues and any other issue which could arise.

Pakistan Industrial Credit and Investment Corporation Limited and others v. Government of Pakistan 2002 CLD 1 ref.

Sajid Mehmood Sheikh, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

SCMR 2011 SUPREME COURT 299 #

2011 SCMR 299

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Ghulam Rabbani, JJ

Mrs. ASMA HASSAN---Petitioner

Versus

Mrs. KAUSAR H. HAMID and others---Respondents

Civil Petition No. 353-K of 2010, decided on 24th June, 2010.

(On appeal from the order/judgment dated 19-5-2010/25-5-2010 passed by High Court of Sindh, Karachi, in Constitutional Petition Nos.373 and 384 of 2010).

Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 16(1)(2)---Constitution of Pakistan, Arts. 185(3) & 199---Tentative rent order, non-compliance of---Striking off defence of tenant by Rent Controller directing him to vacate premises within 30 days---Order of Appellate Court dismissing tenant's appeal and granting him one (1) year's time for vacating premises without notice and providing opportunity of hearing to landlady and without requiring tenant to keep making payment of monthly rent during such period---Dismissal of tenant's constitutional petition by High Court with direction to vacate premises within 30 days---Validity---Tenant had blatantly violated rent order and had not paid rent to landlady even at appeal stage---Appellate Court had entertained tenant's application for grant of one year's time on a date when case was fixed for announcement of judgment, which was shifted to next date and then appeal was dismissed while granting tenant such time without notice and giving opportunity of hearing to landlady---Landlady had later on made complaint to Chief Justice of Pakistan and Chief Justice of High Court against Judge of the Appellate Court---Such complaint was sent to District and Sessions Judge, who after enquiry opined that Judge of the Appellate Court had failed to dispose of case with judicial mind; and that his integrity was questionable in such circumstances---Such clear remarks against Judge of Appellate Court would require an appropriate action against him---Supreme Court dismissed tenant's petition and directed office to send copy of its judgment to Chief Justice of High Court to consider initiating an appropriate disciplinary proceedings against Judge of Appellate Court, if not taken earlier, in accordance with law.

Saathi Muhammad Ishaq, Advocate Supreme Court and K.A. Wahab Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 24th June, 2010.

SCMR 2011 SUPREME COURT 302 #

2011 SCMR 302

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

MUMTAZ AHMAD KHAN---Appellant

Versus

Mrs. SIRAJ and others---Respondents

Civil Appeal No. 46-K of 2009, decided on 12th March, 2010.

(On appeal from the judgment dated 6-2-2009 in HCA No. 276 of 2008 passed by the High Court of Sindh, Karachi).

Partition Act (IV of 1893)---

----S. 4---Civil Procedure Code (V of 1908), O. XX, R. 18---Partition suit---Suit property not capable of partition as per admission of parties---Order of Trial Court directing its Nazir to dispose of property by calling public bids and allowing parties to participate in auction, while their shares in sale proceeds would be determined after recording evidence---Validity---None of parties had expressed any grievance about such order---Such arrangement made by Trial Court between parties for partition of joint property seemed to be acceptable to every one---Partition of property in terms of such order was upheld by Supreme Court in circumstances.

Muhammad Younus, Advocate Supreme Court and Ahmadullah Farooqui, Advocate-on-Record for Appellant.

Anwar Hussain, Advocate Supreme Court and Ali Akbar, Advocate-on-Record for Respondents Nos. 1, 2 and 4.

Respondents Nos. 7 and 8 in person.

Nemo for other Respondents.

Date of hearing: 12th March, 2010.

SCMR 2011 SUPREME COURT 305 #

2011 SCMR 305

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

CITIZENS FOUNDATION and another---Petitioners

Versus

GOVERNMENT OF SINDH and others---Respondents

Civil Petitions Nos. 328-K and 334-K of 2008, decided on 24th September, 2008.

(On appeal from the judgment dated 25-4-2008 passed by the High Court of Sindh, Karachi in C.Ps. Nos. D-165 of 2006 and D-1478 of 2003).

Provincial Employees' Social Security Ordinance (X of 1965)---

----Ss. 2(11) & 3---Constitution of Pakistan, Art. 185(3)---Registration of employees with the institution---Petitioner had impugned direction of High Court, whereby it was directed to get its employees registered with the institution---Contention of the petitioner was that as the petitioner was a charitable organization rendering exemplary services in the educational sector by providing free education it was not "establishment" and provisions of Provincial Employees' Social Security Ordinance, 1965 were not applicable to it---Respondent had supported impugned judgment of the High Court contending that provisions of Provincial Employees' Social Security Ordinance, 1965 were applicable in the case of the petitioner as it was `establishment' as defined in S.2(11) of the Ordinance---Leave to appeal was granted to consider that important issue.

Don Bosco High School, Empress Road, Lahore v. Director, Social Security and 2 others 2005 PLC 110 and Don Bosco High School v. Assistant Director, EOBI and others PLD 1989 SC 128 ref.

Qazi Faez Isa, Advocate Supreme Court for Petitioner (in Civil Petition No.328-K of 2008).

S.A. Sarwana, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No. 3 (in Civil Petition No. 328-K of 2008).

Shahid Anwar Bajwa, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioner (in Civil Petition No.334-K of 2008).

S.A. Sarwana, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No. 1 (in Civil Petition No. 334-K of 2008).

Date of hearing: 24th September, 2008.

SCMR 2011 SUPREME COURT 307 #

2011 SCMR 307

[Supreme Court of Pakistan]

Present: Zia Perwez and Syed Zawwar Hussain Jaffery, JJ

SHABIR AHMED BHURGRI and others---Petitioners

Versus

MUHAMMAD HUSSAIN and others---Respondents

Civil Petition No. 481-K of 2009, decided on Ist July, 2009.

(Against the Order dated 25-2-2006 of the High Court of Sindh, Hyderabad passed in Constitution Petition No. 54-D of 2006).

Constitution of Pakistan---

----Art. 185(3)---Petition for leave to appeal---Counsel for the petitioners had referred to order whereby constitutional petition was dismissed by Division Bench of High Court, when counsel for the petitioner, after arguing the matter at some length made statement that he would not like to press the petition and on said statement the petition was dismissed---When the said application came up for hearing before another Bench of High Court, counsel for the petitioner had confirmed that he had informed the petitioner that petition was dismissed as not pressed---Counsel for the petitioner had contended that ends of natural justice demanded that mistake could be rectified and parties could not be made to suffer on the consequence of mistake---Counsel was not in a position to produce any law calling for interference where during the course of argument the counsel did not press any point or the case, which was common practice when no case was made out on merits---Counsel had also not been able to point out any mistake in the proceedings which could not be equated with the statement made consciously and deliberately by the counsel before the Bench of the High Court---Petition for leave to appeal was dismissed.

Sh. Bashir Ahmed v. Muddassar Hayat and others 2005 SCMR 1120 ref.

Anwar Hussain, Advocate Supreme Court and Ali Akbar, Advocate-on-Record for Petitioners.

Nemo for Respondents.

SCMR 2011 SUPREME COURT 309 #

2011 SCMR 309

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Ghulam Rabbani, JJ

MUHAMMAD SHAUKAT---Petitioner

Versus

ZARAI TARAQIATI BANK LTD. (ZTBL) and another---Respondents

Civil Petition No. 2160 of 2009, decided on 29th December, 2009.

(On appeal from the judgment dated 12-12-2009 in Appeal No.857(R)(CS) of 2009 passed by the Federal Service Tribunal, Islamabad).

Constitution of Pakistan---

----Art. 212(3)---Civil service---Dismissal from service---Conversion of order of dismissal from service into compulsory retirement---Petitioner was transferred from Head Office to Zonal Office of Bank, at a close distance of about 200 yards, but instead of joining the duty, petitioner preferred a petition before National Industrial Relations Commission alleging therein unfair labour practice on part of Bank---Said petition was dismissed and after dismissal of petition, the petitioner was dismissed from service---Service Tribunal had also dismissed appeal filed by the petitioner against order of his dismissal from service---Validity---Petitioner having failed to make out any case, counsel for the petitioner had prayed that on humanitarian ground the petitioner could be given relief because he had handicapped child and had no other source to support his child---Counsel had further prayed that dismissal of the petitioner be converted into compulsory retirement---Bank authorities agreed to accommodate the petitioner provided that present order was not quoted as precedent in future---Petition was converted into appeal and penalty of dismissal from service awarded to the petitioner was converted into compulsory retirement with effect from date, the petitioner was dismissed from service accordingly.

Abdul Rahim Bhatti, Advocate Supreme Court for Petitioner.

Tariq Mehmood, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

SCMR 2011 SUPREME COURT 311 #

2011 SCMR 311

[Supreme Court of Pakistan]

Present: Ghulam Rabbani and Muhammad Moosa K. Leghari, JJ

MUHAMMAD RAFIQ---Petitioner

Versus

Mst. SHAHZADI and others---Respondents

Civil Petition Nos. 569-K and 570-K of 2009, decided on 10th July, 2009.

(On appeal from the order dated 7-5-2009 passed by High Court of Sindh, Karachi in Civil Petition No. S-333 of 2008 and Civil Petition No. S-334 of 2008).

Guardians and Wards Act (VIII of 1890)---

----S. 25---Constitution of Pakistan, Art.185(3)---Custody of minor---Petitioner who was father of minor/boy claimed that in view of long association with the minor, he was entitled to continue holding custody of minor---Finding recorded by three Court (trial court, appellate court and High Court) were against the petitioner---High Court had evaluated the case of the petitioner with great care and observed that Guardian Judge examined the pros and cons of the case minutely, accounted for each and every factual position brought on the record---Respective evidence brought on record by the parties was scrutinized and assessed and the judgment was found to be reasonable---Appellate Court maintained said judgment and High Court dismissed constitutional petition thereagainst---No illegality or infirmity was in the impugned judgment---Petition for leave to appeal was dismissed.

Anwar Hussain, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

SCMR 2011 SUPREME COURT 313 #

2011 SCMR 313

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

CHIEF MANAGER, STATE BANK OF PAKISTAN and 2 others---Appellants

Versus

GHULAM RASOOL and others---Respondents

Civil Appeal No. 721 of 2009, decided on 16th February, 2010.

(On appeal from the judgment dated 17-6-2005 passed by Federal Service Tribunal, Islamabad in Appeal No. 895(R) of 1997).

Civil Appeal No. 1014 of 2009, decided on 16th February, 2010.

(On appeal from the judgment dated 21-5-2009 passed by Lahore High Court, Rawalpindi in Writ Petition No. 961 of 2008).

Civil Appeals Nos. 1112 and 1113 of 2009, decided on 16th February, 2010.

(On appeal from the judgment dated 29-4-2003 passed by Federal Service Tribunal in Appeals Nos. 476(R)CE and 518(R)CE of 2002) .

Civil Appeals Nos. 1114 and 1115 of 2009, decided on 16th February, 2010.

(On appeal from the judgment dated 4-11-2008 passed by Islamabad High Court, Islamabad in W.Ps. Nos. 2412 and 2413 of 2006).

Constitution of Pakistan---

----Art. 212(3)---Civil service---Retirement under Voluntary Golden Handshake Scheme---Entitlement to retirement benefits---High Court had directed the employer/Bank to award the employees' benefits granted to them under the circular---Employees who were retired under Voluntary Golden Handshake Scheme, claimed gift valuing Rs. 66,000 and souvenir in shape of silver medal after their retirement---Under the scheme, the staff and officers would be entitled to the retirement benefits and in addition to normal retirement benefits, bank would provide certain financial and benefit package under Golden Handshake Scheme to all its employees---Employees, in circumstances, were entitled for the benefits as claimed by them---High Court having rightly granted relief to the employees, no interference was called for.

Mubeen-us-Salam' case PLD 2006 SC 602 and Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681 ref.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court for Appellants (in Civil Appeal No. 721 of 2009).

Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court for Appellants (in Civil Appeals Nos. 1014, 1114 and 1115 of 2009).

Khalid Anwar, Senior Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in Civil Appeals Nos.1113 and 1114 of 2009).

Ghulam Rasool (Respondent) in person (in Civil Appeals Nos.721 and 104 of 2009).

Abdul Rahim Bhatti, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents (in Civil Appeals Nos.1112 and 1115 of 2009).

Manzoor Elahi (Respondent) in person (in Civil Appeals Nos.1113 and 1114 of 2009).

SCMR 2011 SUPREME COURT 317 #

2011 SCMR 317

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

MUNEEB AHMED KHAN and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Petition No. 318-L of 2007, decided on 19th March, 2010.

(Against the judgment dated 10-10-2006 passed by Lahore High Court, Lahore in C.R. No. 205 of 2002).

Specific Relief Act (I of 1877)---

----S. 9---Limitation Act (IX of 1908), S.28---Constitution of Pakistan, Art.185(3)---Suit for possession---Petitioners claimed that they were allotted the suit land and that respondents took forcible possession of the same---Neither any date of dispossession had been given by the petitioners in their plaint nor any such thing was mentioned in their evidence---Report submitted by the Evacuee Trust Property Board was to the effect that suit land was evacuee trust property and same was allotted to a school and said school was functioning since 1950---Impugned finding of the High Court to the effect that the respondents had acquired the prescriptive title in terms of S.28 of the Limitation Act, 1908, was unexceptionable, in circumstances.

M. A. Zafar, Advocate Supreme Court for Petitioners.

M. Qamar-uz-Zaman, Advocate Supreme Court for the Evacuee Property Trust Board.

Fayyaz Mehmood, Lit. Officer (EDO (Edu.), Okara for Respondents Nos. 2 and 3.

SCMR 2011 SUPREME COURT 318 #

2011 SCMR 318

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmed, JJ

Mst. NAJMA BEGUM and others---Petitioners

Versus

REHMAT ALI (decd) through L.Rs. and others---Respondents

Civil Petitions Nos. 1739-L and 1745-L of 2006, decided on 15th November, 2006.

(On appeal from the judgment dated 16-6-2006 of the Lahore High Court, Lahore passed in Writ Petitions Nos. 138-R of 1989 and 113-R of 1995).

Constitution of Pakistan---

----Art. 185(3)---Petition for leave to appeal---Withdrawal of petition---Counsel for the petitioners had prayed for permission to withdraw the respective petitions, but added that to save the petitioners from injustice, they could be permitted to approach the Chief Settlement Commissioner/Notified Officer for satisfaction of their respective claims against some available evacuee property---Both the petitions were dismissed as withdrawn with the direction that if the petitioners would approach the Chief Settlement Commissioner/Notified Officer for satisfaction of their alleged claims, then competent Authority, notwithstanding the, repeal of the Settlement Laws, would examine the genuineness of the said claims; and then consider satisfaction of the same against some evacuee property; if available, as the matter was pending litigation when the relevant Settlement Laws had been repealed.

A.R. Shaukat, Senior Advocate Supreme Court with Shahzad Shaukat, Advocate Supreme Court for Petitioners (in C.P. No. 1739-L of 2006).

Iqbal Ahmed Qureshi, Advocate-on-Record for Petitioners (in C.P. No. 1745-L of 2006).

Haji M. Rafi Siddiqui, Advocate-on-Record for Respondent No.5 (in C.P. No. 1739-L of 2006).

Ch. M. Anwar Bhinder, Advocate Supreme Court for Respondents Nos. 7 and 8 (in C.P. No.1739-L of 2006).

Haji M. Rafi Siddiqui, Advocate-on-Record for Respondent No.3 (in C.P. No.1745-L of 2006).

Ch. M. Anwar Bhinder, Advocate Supreme Court for Respondents Nos.5 and 7 (in C.P. No. 1745-L of 2006).

Rana Abdul Hamid, Secretary, Settlement and Rehabilitation, Lahore on Court's Call.

Nemo for Respondents (in both petitions).

SCMR 2011 SUPREME COURT 320 #

2011 SCMR 320

[Supreme Court of Pakistan]

Present: Zia Perwez, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany JJ

ABDUL RASHEED---Petitioner

Versus

MAQBOOL AHMED and others---Respondents

C.P.L.A. No. 244-K of 2009, decided on 20th May, 2009.

(On appeal from order of High Court of Sindh, Karachi dated 3-2-2009 passed in Constitutional Petition No. S-1 of 2009).

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15---Ejectment petition---Denial of relationship of landlord and tenant between parties---Tenant's plea to have purchased demised premises later on through sale agreement---Validity---Tenant in such circumstances had to vacate premises and file suit for specific performance of sale agreement, whereafter he would be given easy access to premises in case he prevailed.

Khalil-ur-Rehman v. Talizar Khan PLD 1992 SC 442; Ghulam Rasool v. Khurshid Ahmed 2000 SCMR 632; Jumma Khan y. Zarin Khan PLD 1999 SC 1101 and Iqbal v. Rabia Bibi PLD 1991 SC 242 ref.

Shameem Akhtar v. Muhammad Rashid PLD 1989 SC 575; Mst. Azeemun Nisar Begum v. Mst. Rabia Bibi PLD 1991 SC 242; Muhammad Rafique v. Messrs Habib Bank Ltd. 1994 SCMR 1012 and Mst. Bor Bibi v. Abdul Qadir 1996 SCMR 877 rel.

(b) Sindh Rented Premises Ordinance (XVII of 1979)---

----Ss. 15 & 16(2)---Ejectment petition---Denial of relationship of landlord and tenant between parties---Tenant's plea to have purchased demised premises subsequently through sale agreement---Striking off defence of tenant by Rent Controller for not complying with tentative rent order---Validity---Enquiry by Rent Controller for determining such relationship was of a summary nature---Tenant had taken premises on rent, but its subsequent purchase by him was denied by landlord---Tenant in such circumstances had to vacate premises and file suit for specific performance of sale agreement, whereafter he would be given easy access to premises in case he prevailed---Relationship between parties for purposes of jurisdiction of Rent Controller stood established ---Rent Controller in tentative rent order had carried out such summary exercise and decided relationship between parties to exist---Question of title could never be decided by Rent Controller---Supreme Court upheld ejectment order passed concurrently by Courts below and High Court.

Khalill-ur-Rehman v. Talizar Khan PLD 1992 SC 442; Ghulam Rasool v. Khurshid Ahmed 2000 SCMR 632; Jumma Khan v. Zarin Khan PLD 1999 SC 1101 and Iqbal v. Rabia Bibi PLD 1991 SC 242 ref.

Anwar Hussain, Advocate Supreme Court for Petitioner.

Ahmadullah Farooqui, Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

Date of hearing: 20th May, 2009.

SCMR 2011 SUPREME COURT 323 #

2011 SCMR 323

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Rahmat Hussain Jafferi and Tariq Pervez Khan, JJ

AMIN ALI and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 358 of 2009, decided on 17th September, 2010.

(Against judgment dated 18-4-2008 of Lahore High Court, Lahore passed in Criminal Appeal No. 2010, Criminal Revision No.1236 and Murder Reference No. 775 of 2002).

(a) Penal Code (XLV of 1860)---

----Ss. 302 & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Reappraisal of evidence---Fire-arm injuries---Distance, determination of--- Medical evidence and ocular account--- Conflict--- Benefit of doubt---All prosecution witnesses deposed that deceased received three injuries and injured person received fire shot from roof of a shop---Death sentence awarded to accused by Trial Court was converted into imprisonment for life by High Court---Validity---Medical officer found six injuries on the person of deceased and one of the injuries had blackening---None of the witnesses deposed that any of the accused had caused injuries from a close range but on the contrary in site plan, place of firing was shown 8 feet from deceased---From such distance, injury with blackening on the person of deceased could not be caused from a, distance of less than 3 feet---Medical officer found one entry wound on the back of injured person with blackening and such wound could not be caused from long distance---Ocular testimony was in conflict with medical evidence, thus deceased and injured did not receive injuries in the manner as alleged by prosecution---Prosecution failed to prove case against accused beyond any reasonable doubt, therefore, they were entitled for benefit of doubt, which was given to them---Conviction and sentence awarded to accused was set aside by Supreme Court and accused were acquitted of the charge---Appeal was allowed.

State v. Fateh Muhammad 1980 PCr.LJ 1245; State v. Muhammad Raja PLD 2004 Pesh. 1; Khuda Dad v. Ghulam Qasim 2000 MLD 1782 and Noor Muhammad v. State 2010 SCMR 97 ref.

Ashiq Hussain v. State PLD 1994 SC 879 fol.

Modi's Medical Jurisprudence rel.

(b) Medical jurisprudence---

----Fire-arm injury---Entry or exist wound---Determination---If metallic projectile is out of body, it is an exit wound, and presence of metallic projectile in body establishes the fact that it was not an exit wound but an entry wound.

----Ss. 302 & 34---Qatl-e-amd--Reappraisal of evidence---Injured witness---Scope---Presence of injured witnesses cannot be doubted at place of incident merely because they had injuries on their person does not stamp them to be truthful witnesses.

Muhammad Hayat v. State 1996 SCMR 1411; Said Ahmad v. Zammured Hussain 1981 SCMR 795 and State v. Muhammad Raja PLD 2004 Pesh. 1 rel.

(d) Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), S. 166(3) & (4)---Qatl-e-amd---Recovery from another police station---Recovery was made from jurisdiction of another police station but investigating officer did not go to that police station or make any entry so as to show his presence at relevant time within jurisdiction of that police station or took some help from that police station---Effect---Such act of investigating officer, created doubt about genuineness of recovery and no implicit reliance could be placed on such type of evidence.

(e) Criminal Procedure Code (V of 1898)---

----S. 410---Constitution of Pakistan, Arts. 189 & 190---Appeal, non-filing of---Benefit of judgment passed by Supreme Court---Supreme Court allowed appeal of co-accused persons and acquitted them of the charge---Effect---Supreme Court directed to give benefit of the judgment to other accused, who did not prefer appeal for the reason that his sentence was less and he had served out the same---Accused who did not file appeal was also acquitted.

G.N. Gohar, Advocate Supreme Court for Appellants.

Syed Ali Imran, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 12th January, 2010.

SCMR 2011 SUPREME COURT 333 #

2011 SCMR 333

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhary, C. J., Mian Shakirullah Jan and Saiyed Saeed Ashhad, JJ

EJAZ ALI BUGHTI---Petitioner

Versus

P. T. C. L. and others---Respondents

Civil Petition No.1159 of 2006, decided on 12th February, 2007.

(On appeal from the judgment dated 31-10-2006, passed by the Federal Service Tribunal in M.P.394/2006 in Service Appeal No.327-K/CE of 2000).

Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----S. 36(3)(5)---Constitution of Pakistan, Art.212(3)---Status of civil servant---Determination of---Petitioner, prior to his transfer to Pakistan Telecommunication Company, was in the employment of Pakistan Telecommunication Corporation which was Government Institution---Question to be considered was whether after transfer to Pakistan Telecommunication Company, petitioner would continue to enjoy the status of `Civil servant'---Neither anything was on record nor it had been asserted by the petitioner that he had ever been retransferred or reverted .to his original position of civil servant as envisaged under S. 36(5) of Pakistan Telecommunication (Re-organization) Act, 1996---Pakistan Telecommunication Company to which petitioner was transferred had no statutory rules---Petitioner, in circumstances could not be said to be civil servant---Service Tribunal had rightly declined to grant relief to the petitioner.

Manzoor Ali Khan's case 1999 SCMR 1526 ; 1994 SCMR 1526 (Page-1536)[c] and Muhammad Mubeen-us-Salam . v. Federation of Pakistan PLD 2006 SC 602 ref.

Abdul Rehman Siddiqui, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

SCMR 2011 SUPREME COURT 336 #

2011 SCMR 336

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Rahmat Hussain Jafferi, JJ

FINANCE DIVISION through Secretary and others---Petitioners

Versus

MUHAMMAD ASLAM and another---Respondents

Civil Petitions Nos. 1158 and 1159 of 2009, decided on 28th September, 2010.

(On appeal against the judgment dated 26-3-2009 passed by Federal Service Tribunal, Islamabad in Appeals Nos. 1062(R)CS of 2007 and 12(R)CS of 2008).

Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan, Art. 212(3)---Special allowance---Applicability---Factual controversy---Plea not raised---Authorities declined special allowance to civil servants which was sanctioned by government---Service Tribunal allowed appeal filed by civil servants and found them entitled to special allowance---Plea raised by authorities was that civil servants were not working against posts of technical nature, therefore, technical allowance was not available to them---According to Service Tribunal, paragraph applicable to civil servants clearly indicated that special allowance was available to the posts against which civil servants were working---Plea raised by authorities was based on factual premise and was not raised in the grounds of petition filed before Supreme Court---Authorities failed to refer any document to support the premise on which it had tried to build-up its case---Point of limitation was neither taken by authorities in its parawise comments submitted before Service Tribunal nor it was raised during arguments---Judgment passed by Service Tribunal decided the matter on merits and was unexceptionable---Authorities failed to raise a question of law of public importance within the meaning of Art. 212(3) of the Constitution to warrant interference---Leave to appeal was refused.

Dil M. Khan Alizai, Deputy Advocate-General and Ch. Muhammad Akram, Advocate-on-Record for Petitioners.

Abdul Rahim Matti, Advocate Supreme Court for Respondent No. 1.

SCMR 2011 SUPREME COURT 345 #

2011 SCMR 345

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Raja Fayyaz Ahmed, Jawwad S. Khawaja, Rahmat Hussain Jafferi and Tariq Parvez Khan, JJ

MUHAMMAD SAEED BACHA and another---Appellants

Versus

Late BADSHAH AMIR and others---Respondents

Civil Appeal No. 781 of 2006, decided on 28th April, 2010.

(On appeal from the judgment dated 25-5-2004, passed by Peshawar High Court, Peshawar in Writ Petition No. 1410 of 2003).

(a) Civil Procedure Code (V of 1908)---

----O. XXIII, R.2---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether in the event of institution of fresh suit after its withdrawal by permission of Supreme Court, limitation would be reckoned with reference to institution of fresh suit or earlier suit in the light of O. XXIII, R. 2, C. P. C. and other provisions of law.

(b) Limitation Act (IX of 1908)---

----S.14---Exclusion of period spent in other proceeding---Bona fide proceeding--- Onus to prove--- Obligatory on the part of appellants/plaintiffs for discharging initial onus justifying for exclusion of period spent in prosecuting previous proceeding.

----S. 42---Limitation Act (IX of 1908), S. 14---Civil Procedure Code (V of 1908), O. XXIII, Rr.1 & 2---Second suit, filing of---Limitation, computation of---Plaintiffs filed earlier suit in year, 1986, which suit was withdrawn in Supreme Court on 9-5-2001, with permission to file fresh suit and thereafter subsequent suit was filed---Plea raised-by plaintiffs was that they were entitled to benefit of S. 14 of Limitation Act, 1908, and subsequent suit was not barred by limitation---Validity---Beneficial applicability of provisions of S. 14 of Limitation Act, 1908, was not simply dependent on withdrawal of suit with permission of court to institute a fresh suit on same cause of action, rather in view of provisions of O. XXIII, R. 2, C.P.C., on the application of law of limitation as if previous suit was not instituted and plaintiffs had to show that suit so instituted was within time---If filing of suit was hit by limitation, burden was on plaintiffs to show that they had been, with due diligence, prosecuting another civil proceedings founded upon same cause of action and acted in good faith in a court, which for defect of jurisdiction or other cause of like nature was unable to entertain it read with explanations to S. 14 of Limitation Act, 1908, to be entitled to exclusion of period consumed in such proceedings---Plaintiffs failed to prove all such necessary facts to prove their entitlement of benefit of S. 14 of Limitation Act, 1908---Supreme Court declined to interfere in the judgment passed by High Court---Appeal was dismissed.

Juma Khan and others v. Muhammad Khan and others 1973 SCMR 289; Riasat Ali v. Iqbal Rai and others AIR 1935 Lah. 827; Pothukutchi Appa Rao and others v. Secretary of State AIR 1938 Madras 193 and Parjapati and others v. Jot Singh and others AIR 1934 Allahabad 539 distinguished.

Ghulam Ali v. Asmat Ullah and another 1990 SCMR 1630; Jewan and 7 others v. Federation of Pakistan through Secretary Revenue, Islamabad and 2 others 1994 SCMR 826, Mst. Anwar Bibi and others v. Abdul Hameed 2002 SCMR 144; Parjapati and others v. Jot Singh and others AIR 1934 Allahabad 539 and Governor-General in Council' v. Gouri Shankar Mills Limited AIR (38) 1951 Patna 382 ref.

Mian Muhammad Younas, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Appellants.

Qazi Muhammad Jamil, Senior Advocate Supreme Court for Respondents.

Date of hearing: 28th April, 2010.

SCMR 2011 SUPREME COURT 355 #

2011 SCMR 355

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Khilji Arif Hussain and Asif Saeed Khan Khosa, JJ

Mst. MUMTAZ BIBI and others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Petition No. 256-L, of 2010, decided on 30th April, 2010.

(On appeal against the order dated 5-4-2010 passed by Lahore High Court, Lahore in Criminal Miscellaneous No. 3474-B of 2010).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.381/395---Constitution of Pakistan, Art. 185(3)---Theft by clerk or servant and dacoity---Bail, grant of---Further inquiry---Accused were ladies---None was nominated as accused in the F.I.R.---No identification parade was held to connect accused persons with the F.I.R.---None of the items mentioned in the F.I.R. were recovered from accused persons---Story given in the supplementary statement by the complainant was at variance with the initial story given in the F.I.R.---Question of accused persons' guilt, in circumstances, would require further inquiry--Bail was granted in circumstances.

Rai M. Tufail Khan Kharal, Advocate Supreme Court for Petitioners.

M. Aslam Sindhu, Additional Prosecutor-General and M. Ayub, S.-I. Police Station Defence, Lahore for the State.

SCMR 2011 SUPREME COURT 356 #

2011 SCMR 356

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Zia Perwez and Syed Zawwar Hussain Jaffery, JJ

Syed SABIR HUSSAIN SHAH---Appellant

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Civil Appeal No. 2213 of 2008, decided on 2nd March, 2010.

(On appeal from the judgment of the Lahore High Court, Lahore, passed in ICA No. 262 of 2005).

(a) Punjab Local Fund Audit Department Service Rules, 1981---

----Notification S.R.O-III-1-6/72, dated, 21-11-1981---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider impact and effect of notification dated 30-5-2005, in particular the schedule attached thereto, and as to whether the notification was mandatory or regulatory/directory.

(b) Punjab Local Fund Audit Department Service Rules, 1981---

----Notification S.R.O-III-1-6/72, dated, 21-11-1981 & Schedule---Words "holding post of Divisional Director"---Scope---Petitioner assailed promotion of respondent on the ground that he was serving on transfer in Finance Department---Validity---Department had been making such promotions on correct interpretations of Punjab Local Fund Audit Department Service Rules, 1981---Word "holding post of Divisional Director" appearing in Punjab Local Fund Audit Department Service Rules, 1981, meant holding of substantial post of Divisional Director in the Department, therefore, respondent was eligible to be considered for promotion as Provincial Director---Petitioner failed to make out any case to successfully assail promotion of respondent as Provincial Director in the Department of Local Fund Audit of Punjab---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Leave to appeal was refused.

Asian Food Industries Ltd. v. Pakistan 1985 SCMR 1753 and Province of Punjab v. Shah Muhammad Chaudhry 1997 PLC (C.S.) 412 ref.

Aftab Gul, Advocate Supreme Court for Appellant.

Mudassar Khalid Abbaasi, Additional Advocate-General Punjab for Respondents Nos. 1 to 3.

Abdul Rahim Bhatti, Advocate Supreme Court for Respondent No.4.

Date of hearing: 2nd March, 2009.

SCMR 2011 SUPREME COURT 361 #

2011 SCMR 361

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

COMMISSIONER OF INCOME TAX, ZONE B, PESHAWAR-Petitioner

Versus

ZABEEL PALACE HOTEL, PESHAWAR---Respondent

Civil Review Petitions Nos. 109 and 110 of 2006, decided on 11th February, 2010.

(Against the judgment dated 22-12-2005 passed by this Court in Civil Appeals Nos. 111 and 112 of 2000).

Constitution of Pakistan---

----Art. 188---Review of Supreme Court judgment---Delay in filing review petition---Application for condonation of delay---Review petitions were barred by 128 days and applications for condonation of said delay were moved without assigning cogent reasons---Departmental authorities remained reluctant in pursuing legal remedy and ultimately time-barred proceedings were instituted without realizing that on account of such conduct of the individual, the Department and Public Exchequer in the case involving finances, had to suffer---Supreme Court observed that it was necessary for them to remain vigilant and not to allow the person responsible for the same without any departmental action---Application for condonation of delay having no substance, review petitions were dismissed with the direction to the concerned authorities to take action against the officers/officials responsible for not pursuing legal remedy diligently.

Raja Abdul Ghafoor, Advocate-on-Record for Petitioner (in both cases).

Abdul Rauf Rohela, Advocate Supreme Court for Respondent (in both cases).

SCMR 2011 SUPREME COURT 363 #

2011 SCMR 363

[Supreme Court of Pakistan]

Present: Javed Iqbal and Jawwad S. Khawaja, JJ

JAHANGIR SARWAR and others---Petitioners

Versus

LAHORE HIGH COURT and another---Respondents

Civil Petition No. 2148-L of 2009, deiced on 8th November, 2010.

(On appeal from the order dated 10-9-2009 passed by the Lahore High Court, Lahore in Writ Petition No. 16680 of 2009).

Punjab Civil Servants Act (VIII of 1974)---

----S.23---Punjab Judicial Service Rules, 1994, R.7(1)(a)---Sindh Civil Servants Act (XIV of 1973), S. 26---Sindh Judicial Service Rules, 1994, R. 8(1)(b)---Constitution of Pakistan, Arts. 25 & 18S(3)---Appointment of judicial officers---Two years law practice---Pre-condition---Reasonable classification, principle of---Applicability---Petitioner assailed provisions of R. 7(1)(a) of Punjab Judicial Service Rules, 1994, whereby condition of two years' law practice was made mandatory for any candidate to be appointed as Judicial officer---Plea raised by petitioner was that condition imposed by Punjab Government was discriminatory as no such condition was required by Sindh Government under R. 8(1)(b) of Sindh Judicial Service Rules, 1994---Validity---Sindh Government framed Sindh Judicial Service Rules, 1994, in exercise of powers conferred upon it under S. 26 of Sindh Civil Servants Act, 1973, whereas Punjab Judicial Service Rules, 1994, were framed by Governor under S. 23 of Punjab Civil Servants Act, 1974---Rules applicable in two Provinces were enacted under two different statutes and in view of peculiar circumstances of each Province---Rules made in one Province could not be made applicable to other Province unless so adopted and petitioner failed to mention any such order in that regard---Principle of reasonable classification or differentia was not misinterpreted or misconstrued as Art. 25 of the Constitution did not prohibit reasonable classification with regard to operation of law---Provisions of Sindh Judicial Service Rules, 1994, could not be made applicable in the Province of Punjab---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Pakistan Petroleum Workers Union v. Ministry of Interior 1991 CLC 13; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; Ziaullah Khan v. Government of sPunjab PLD 1989 Lah. 554; Akram Khan v. State PLD 1976 Lah. 1224; I. A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Aziz Begum v. Federation of Pakistan PLD 1990 SC 899; Balochistan Bar Association v. Government of Balochistan PLD 1991 Quetta 7; Kathi Raning v. State of Saurashtra AIR 1952 SC 123; Dhirendra v. Supdt. and Remembre AIR 1954 SC 424; Zain Noorani v. Secretary of National Assembly PLD 1957 Kar. 1; Government of Punjab Health Deptt. v. Naila Begum PLD 1987 Lah. 336; Government of Punjab and others v. Mst. Naila Begum PLD 1988 Lah. 331; Charanjit Lal v. Union of India AIR 1951 SC 41; State of West Bengal v. Anwar Ali AIR 1952 SC 75; Rehman Shagoo v. State of J&K 1958 Cri L Jour 885; TK Abraham v. State of Tra. Co AIR 1958 Ker. 129 and PLR 1957 (1) 743 rel.

Mushtaq Ahmad Mohal, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 8th November, 2010.

SCMR 2011 SUPREME COURT 368 #

2011 SCMR 368

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Ghulam Rabbani and Muhammad Moosa Khan Leghari, JJ

MUSLIM EDUCATIONAL SOCIETY (Regd.)---Appellant

Versus

MADINA MASJID---Respondent

Civil Appeal No. 1850 of 2008, decided on 8th July, 2009.

(On appeal from the judgment of the High Court of Sindh at Karachi dated 1-2-2008 passed in Revision Application No. 131 of 2006).

Sindh Local Government Ordinance (XXVII of 2001)---

----Ss. 18 & 123---Constitution of Pakistan, Art.185---Appeal to Supreme Court---Demarcation of property---Counsel of the parties agreed that appeal be disposed of in terms of a direction to be given to the City District Government to have the suit properly demarcated with a view to find out as to whether the same was situated on a sanctioned public street/lane; and if the property was found to be part of the lane, appeal would stand dismissed otherwise, the appellant should have a right to have that appeal resurrected---In view of the fair stand taken by the counsel for parties, City Nazim was directed to have the demarcation carried out by keeping the site plan in view and report as to whether the suit property was part of the public street/lane or not---If report would be to tie effect that suit property was part of the street, appeal would stand dismissed, otherwise appellant would have a right to have appeal resurrected.

Abdul Latif A. Shakoor, Advocate Supreme Court for Appellant.

Anwar Hussain, Advocate Supreme Court for Respondent.

SCMR 2011 SUPREME COURT 369 #

2011 SCMR 369

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J. and Ghulam Rabbani, J

MUHAMMAD SHARIF (deceased) through L.Rs. and others---Petitioners

Versus

VTH ADDITIONAL DISTRICT AND SESSIONS JUDGE (CENTRAL), KARACHI---Respondent

Civil Petition No. 557-K of 2006, decided on 18th December, 2008.

(On appeal from the order dated 11-9-2006 passed by the High Court of Sindh, Karachi in C.P. No. S-663 of 2004).

Sindh Rented Premises Ordinance (XVII of 1979)---

----Ss. 15(2)(ii) & 21---Constitution of Pakistan, Art. 185(3)---Default in payment of rent of premises---Counsel for the petitioners/tenants, had contended that they had paid to the landlords agreed rent of the premises for relevant period---Landlords appeared in the Court and denied assertion of the tenants about payment of rent for relevant period---No receipt was produced for payment of rent for the relevant period---Counsel for the tenants had simply stated that practice was to pay rent in lump sum, but he did not say in affirmative or in the negative that in the past no receipt was issued; it was hard to accept the plea of the tenants that the landlords had received the rent, but abstained to issue receipt---Observation of the High Court that findings of the Appellate Court that the tenants, predecessor had committed default in payment of rent for the relevant period, was correct, on both fact and law and required no interference---Counsel for the tenants could not advance compelling circumstances warranting interference with such findings---Petition for leave to appeal was dismissed.

Anwar Hussain, Advocate Supreme Court and Ali Akbar, Advocate-on-Record for Petitioners.

Nemo for Respondent.

SCMR 2011 SUPREME COURT 371 #

2011 SCMR 371

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Khalil-ur-Rehman Ramday, JJ

PRIME MINISTER INSPECTION TEAM NATIONAL HIGHWAY AUTHORITY---Appellants

Versus

ZAHEER MIRZA and others---Respondents

Civil Appeals Nos. 228-K, 275-K and Civil Petition No.49 of 2009, decided on 7th April, 2010.

(On appeal from the judgment dated 29-5-2009 passed by the High Court of Sindh, Karachi in C.P. No. D-620 of 2009 and others).

Constitution of Pakistan---

----Art. I85---Appeal to Supreme Court---Collapse of Fly Over---Putting names on Exit Control List---After hearing the parties and their counsel, Supreme Court ordered to the effect that operation of impugned judgment passed by High Court was suspended; that name of the respondents would continue to be on Exit Control List; and Prosecutor General, if considered that name of any other person connected directly or indirectly with the collapse of Fly Over would recommend to the Secretary Interior for placing his name on Exit Control List; that Chairman National Highway Authority was directed to pay Rs.1.5 million each as interim compensation to the heirs of the deceased; that to safeguard the interest of the minors, the Prosecutor General was deputed to ensure deposit of all the sharers to the minors in the Scheduled Bank/National Savings Centre in profit bearing schemes with facility to the mother or father to receive monthly profit for their expenditures; that Prosecutor-General would work out the amount of compensation in respect of the shares of injured persons and said amount would be paid by the Chairman National Highway Authority within three days to them; that Chairman National Highway Authority was directed to co-operate with the Prosecutor General and supply him all the documents including inquiry report; that D.I.G., was directed to register case of incident and conduct investigation independently; that P.P.O./I. G. P. was directed to conduct inquiry against the officials/officers, responsible for not immediately registering the case at the time when incident had taken place; that said exercise would be completed within stipulated period and report would be submitted to the Registrar, Supreme Court and that Secretary Communications was directed to complete departmental proceedings against the officials/officers, responsible for the incident, in which the bridge was collapsed, as early as possible.

Umar Hayat Sandhu, D.A.-G., Nadeem Azhar Siddiqui, Advocate Supreme Court, A.S.K. Ghouri, Advocate-on-Record and M.S. Ghouri, Advocate-on-Record for Appellants.

Bilal A. Khawaja, Advocate Supreme Court, K.A Wahab, Advocate-on-Record with Zaheer Mirza and Khalid Mirza for Respondent No. 1.

Shahadat Awan, Prosecutor-General, Sindh on Court Call.

Sharif Ahmed Khan, Secy. Communication, Altaf Ahmed, Chairman, NHA, Gen.(R) Farrukh, Ex. Chairman, NHA, Yousar Barakzai, Raja Nosherwan and Col. (R) Tahseen (absent) on Court Notice.

Sardar Abdul Majeed, D.I.-G., West Zone, Karachi, Abdul Sattar, DPO, Site Karachi and Shaukat Khatian, SP, Investigation on Court Notice.

Nasir Maqsood, Advocate Supreme Court with L.Rs. of deceased.

SCMR 2011 SUPREME COURT 374 #

2011 SCMR 374

[Supreme Court of Pakistan]

Present: Javed Iqbal and Jawwad S. Khawaja, JJ

MUHAMMAD ARIF---Petitioner

Versus

UZMA AFZAL and others---Respondents

Civil Petition No. 2492-L of 2009. decided on 8th November, 2010.

(On appeal from the order dated 3-11-2009 passed by the Lahore High Court, Lahore in Writ Petition No. 11836 of 2009).

West Pakistan Family Courts Act (XXXV of 1964)---

---Ss. 5 & 17-A---Constitution of Pakistan, Art. 185(3)---Maintenance, fixation of---Striking off defence---Father of minor son was aggrieved of the maintenance fixed by Family Court---Validity---Interim maintenance of minor was fixed due to failure of father who did not turn up and besides that interim order was not complied with---Family Court had rightly struck off defence of father of minor, pursuant to provisions as enumerated in S. 17-A of West Pakistan Family Courts Act, 1964---Suit to the extent of maintenance allowance was rightly decreed by Trial Court, determination whereof had been upheld by Lower Appellate Court---Suit filed by mother of minor had been decided in accordance with law and no misreading or non-reading could be pointed out in evidence which had come on record and besides that no jurisdictional defect could be mentioned---High Court after having gone through all pros and cons of the controversy had decided constitutional petition in comprehensive manner---Judgment passed by High Court was well based and did not warrant interference by Supreme Court---Leave to appeal was refused.

Manzoor Hussain v. Zulfiqar Ali 1983 SCMR 137; Khan Gul v. District Judge PLD 1990 Lah. 263; Syed Shah v. Political Agent Bajaur Agency PLD 1981 Pesh. 57; Muhammad Asif v. Province of Sindh 1990 MLD 2192; Wali Muhammad v. Sakhi Muhammad PLD 1974 SC 106; Saleh Shah v. Custodian of Evacuee Property 1971 SCMR 543; Ahmad Khan v. Custodian of Evacuee Property PLD 1963 Kar. 450; A.K.M. Fazlul Quader Chowdhury v. Govt. of Pakistan PLD 1957 Dacca 342; Momin Motor Co. v. R.T.A. Dacca PLD 1962 Dacca 310; Fazal Elahi v. Shaikh Muhammad PLD 1962(2) W.P.1; Abdul Wahid Khan v. Custodian of Evacuee Property PLD 1966 Quetta 25; P.G. Braganza v. Border Area Allot. Committee 1984 CLC 1479; Saifullah Khan v. Settlement Commissioner 1982 SCMR 853; Sardar Muhammad v. Deputy Administrator Rasidual Property 1981 SCMR 738; Ali Muhammad v. Secretary Housg & Phyl. Plang. Deptt. 1984 CLC 2203 and Abdul Wahid Khan v. Custodian of Evacuee Property PLD 1966 Quetta 25 rel.

Ch. Naseer Ahmed Bhutta, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 8th November, 2010.

SCMR 2011 SUPREME COURT 379 #

2011 SCMR 379

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Jawwad S. Khawaja and Khalil-ur-Rehman Ramday, JJ

ZULFIQAR HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 272 and 273 of 2002 in Criminal Petition Nos. 649-L and 695-L of 2001, decided on 21st December, 2010.

(On appeal against the judgment dated 25-9-2001 of the Lahore High Court, Lahore, passed in Criminal Appeals Nos. 770 and 840 of 1999 and Murder Reference No. 298-T of 1999).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Non-Muslim witness---Mere fact that prosecution witness was Ahmadi by faith, the same was no ground to reject his testimony against a person who was not so.

(b) Criminal Procedure Code (V of 1898)---

----Ss.161 & 172 (2)---Case diaries' andstatements of witnesses'---Distinction---Unlike case diaries recorded by investigating officer about proceeding in investigation which was a privileged record in view of provisions of S. 172(2), Cr.P.C., and statements recorded under S.161, Cr.P.C. were unprivileged and a public record.

----S.161---Statement of prosecution witnesses---Accused, right of---Through first proviso to S. 161(1), Cr.P.C., a right has been conferred upon accused to demand a copy of statement of prosecution witness, being examined at trial which was recorded under S. 161, Cr.P.C. to enable accused to confront that witness with his earlier statement recorded by police officer and to highlight any contradiction in two statements i.e. one recorded by investigating officer and one being made at trial.

(d) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Reappraisal of evidence---Sentence, reduction in---Motive---Proof---Unplanned occurrence---Both accused were convicted by Trial Court under S. 302(b), P.P.C. and were sentenced to death---Conviction and sentence awarded by Trial Court was maintained by High Court---Validity---If both accused had a mind to kill deceased after office hours then they should have been happy with absence of Chowkidar which could have provided them with perfect opportunity to accomplish their design unwitnessed and would not have asked eye-witness to remain available to witness the proceeding and to become an eye-witness against them; as such the same had indicated that murder of deceased was not a planned and pre-meditated murder---Motive for occurrence was shrouded in mystery and even genesis of occurrence was hazy and nebulous---Sentence of death to both the accused was not sustained in circumstances---Supreme Court while maintaining findings of guilt as recorded against two accused, set aside the sentence of death awarded to them and convicted under S. 302(b), P.P.C. and each of them was punished with sentence of imprisonment for life---Appeal was disposed of accordingly.

Kh. Sultan Ahmed, Senior Advocate Supreme Court for Appellants.

M. Irfan Malik, Additional Prosecutor-General for the State.

Syed Ehtesham Qadir Shah, Advocate Supreme Court for the Complainant.

Date of hearing: 21st December, 2010.

SCMR 2011 SUPREME COURT 389 #

2011 SCMR 389

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ

DIRECTOR-GENERAL INTELLIGENCE BUREAU, ISLAMABAD and others---Appellants

Versus

AMIR MUJAHID KHAN and others---Respondents

Civil Appeals Nos. 710 to 719 of 2009, decided on 13th October, 2009.

(On appeal from the judgment dated 31-12-2008 passed by Federal Service Tribunal, Islamabad, in Service Appeals Nos.739(R)CS/2007, 740(R)CS/2007, 741(R)CS/2007, 742(R)SC/2007 and 16(Q)CS/2007).

(a) Civil Servants Act (LXXI of 1973)---

----S.8---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.8-B---Civil Servants (Seniority) Rules, 1993, R.3---ESTACODE Edition, 2000, Sl.Nos.147 & 148---Constitution of Pakistan Art. 212(3)---Leave to appeal was granted by Supreme Court to consider the question which involved seniority of three categories of employees, the first category was of those employees who were promoted to grade 18 prior to appointment of direct recruites; the second category was of direct recruites; and third category was of the promotees who were promoted on acting charge basis as they were not qualified for appointment like first category on account of their incomplete length of service, which question assumed more importance in view of the contention of respondents that even earlier promotees were not eligible for promotion as their length of service required for grade 18 was not complete in grade 17 but their length of service in grade 16 was included, which under the law could not be.

(b) Civil Servants (Seniority) Rules, 1993---

----R.6---Seniority---Principle---Departmental promotees are regarded senior to direct recruites of same year as per Rule 6 of Civil Servants (Seniority) Rules, 1993.

Fasihuddin Siddiqui's case 1998 SCMR 637; Muhammad Yousaf's case 1996 SCMR 1297 and Rustam Khan's case 1994 SCMR 1957 rel.

----Seniority, fixation of---Principles---Seniority is not a vested right---Seniority in grade to which a civil servant is promoted is to take effect from the date of regular appointment to a post in the grade---Seniority cannot be conferred retrospectively unless such right was established---Regular seniority from retrospective date is not permitted and is beyond the power of government---Civil servants who were senior in lower grade retain inter se seniority in higher grade in case they were promoted in a batch.

Nazeer Ahmed's case 2001 SCMR 352=2001 PLC (C.S.) 394; Muhammad Yousaf's case 1996 SCMR 1297; Muhammad Zakir Khan scase 2004 SCMR 497; Jehangir Mirza's case PLD 1990 SC 1013; Wajahat Hussain's case PLD 1991 SC 82 and Sh. Anwar Hussain's case 1985 SCMR 1201 rel.

(d) Civil Servants Act (LXXI of 1973)---

----S. 8---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.8-B---Civil Servants (Seniority) Rules, 1993, R.3---ESTACODE Edition, 2000, SI.Nos.147 & 148---Seniority---Departmental promotees---Direct appointees---Promotion on acting charge basis---Scope---Respondents were aggrieved of provisional seniority list/gradation list against which their departmental representations were dismissed but Service Tribunal allowed their appeals---Effect---Respondents regained their original seniority on subsequent promotion so long the order of Departmental Promotion Committee dated 18-8-2005, remained in field---Subsequently the respondents were not promoted on permanent basis, thus, it was presumed that they were considered and were not promoted due to lack of requisite length of service, therefore, such respondents could not be granted seniority from original date of their consideration for promotion---Supreme Court partly accepted appeals to the extent of respondents who were not promoted on permanent basis but were appointed on acting charge basis and dismissed to the extent of respondents who were promoted on permanent basis---Fresh appointees were juniors to departmental appointees who were promoted in same year by Departmental Promotion Committee in its meeting held on 18-8-2005 whereas they were senior to the promotees who were promoted in subsequent year, 2006---Supreme Court declined to decide issue of inter se seniority of promotees as the same was not an issue before the court---Such issue of inter se seniority could not be decided in collateral proceedings--- Appeal was disposed of accordingly.

Muhammad Gulshan Khan's case PLD 2003 SC 102; Ch. Muhammad Saleem's case 1994 SCMR 517 and Luqman Zareen's case 2006 SCMR 1938 ref.

Abdul Ghani Chaudhry's case 1998 PLC (C.S.) 1278 and Sabir Shah's case PLD 1994 SC 738 rel.

(e) Civil Servants (Seniority) Rules, 1993---

----R. 3, proviso (c)---Promotion---Principle---If promotion of civil servant is deferred without any fault on his part, such civil servant can be given promotion from ante date when his juniors were promoted.

Muhammad Jan Marwat's case 1997 PLC (C.S.) 512 rel.

(f) Administration of justice---

----Each and every case is to be decided on its own peculiar circumstances and facts.

Trustees of the Port of Karachi's case 1994 SCMR 2213 rel.

Shah Khawar, Deputy Attorney-General, Muhammad Akram Sheikh, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.As. Nos. 710 to 714 of 2009).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellants (in C.As. Nos. 715 to 719 of 2009).

Haider Hussain, Advocate Supreme Court for Respondent No.1 (in all cases).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondents Nos. 2, 4, 9, 11 (in C.As. Nos. 710 to 714 of 2009).

Date of hearing: 28th September, 2009.

SCMR 2011 SUPREME COURT 401 #

.2011 SCMR 401

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tassaduq Hussain Jillani, Raja Fayyaz Ahmed and Anwar Zaheer Jamali, JJ

STATE---Appellant

Versus

MUHAMMAD YASIN MEMON alias YASIN MEMON and another---Respondents

Criminal Appeal No. 405 of 2001, decided on 5th January, 2011.

(On appeal from judgment of High Court of Sindh, Karachi dated 23-8-2001 passed in Spl. Crl. Anti-Terrorism Appeal No. 50 of 1999 and Confirmation Case/Reference No. 20 of 1999).

(a) Anti-Terrorism Act (XXVII of 1997)---

----S.7---Leave to appeal was granted by Supreme Court to reappraise evidence with a view to examine contentions raised by authorities that High Court had misread material that was available before it and that testimony of complainant supported by eye-witnesses had been discarded on spacious grounds rendering judgment passed by High Court wholly artificial, shocking and ridiculous.

(b) Anti-Terrorism Act (XXVII of 1997)---

----S.7 (1) (a)---Penal Code (XLV of 1860), S. 302---Qatl-e-Amd---Reappraisal of evidence---Acquittal of accused---Truthful witnesses--Incident was a day time occurrence which had taken place at a busy road and resulted in Qatl-e-Amd of official due to one firearm injury---Role of firing on deceased official was attributed only on both accused---Trial Court convicted both the accused under S. 302(b), P.P.C. read with S. 7 of Anti-Terrorism Act, 1997, and sentenced them to death but High Court acquitted both the accused---Validity---High Court in its judgment did not touch evidence of any of four eye witnesses examined by prosecution and brushed aside/discarded it for fanciful and conjectural reasons, having no legal sanctity---High Court while recording acquittal of both accused, was swayed away and influenced with those aspects of the case, which had no material bearing or relevancy to the case of prosecution regarding commission of offence under S. 302(b), P.P.C. read with S. 7(1)(a) of Anti-Terrorism Act, 1997 by accused persons---In evidence of all four eye-witnesses there was element of truthfulness and complete consistency and they all remained unshaken in cross examination in a very upright and honest manner---Prosecution witnesses had no animosity towards accused to depose falsely before Trial Court for proving their guilt---Supreme Court set aside the judgment passed by High Court and convicted both the accused for commission of offence under S. 302(b), P.P.C. as well as under S. 7(1)(a) of Anti-Terrorism Act, 1997---Appeal was allowed.

Saleem Akhtar, Additional Prosecutor-General, Sindh for Appellant.

Khawaja Naveed Ahmed, Advocate Supreme Court for Respondents.

Date of hearing: 5th January, 2011.

SCMR 2011 SUPREME COURT 408 #

2011 SCMR 408

[Supreme Court of Pakistan]

Present; Iftikhar Muhammad Chaudhry, C. J., Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

MUHAMMAD NADEEM ARIF and others---Petitioners

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and others---Respondents

Civil Petitions Nos.492 to 495 of 2009, decided on 13th May, 2009.

(Against the judgment dated 6-3-2009 passed by the Lahore High Court, Lahore in I.C.As. Nos. 154 to 157 of 2008).

(a) Constitution of Pakistan---

----Art.199---Civil Procedure Code (V of 1908), O.XX, R.1(2)---Constitutional petition---Announcement of judgment by High Court after six months of hearing the arguments of parties---Validity---Provisions of O. XX, R.1(2), C. P. C., were directory, but not mandatory---High Court, after considering contentions of petitioner had dismissed petition with cogent reasons---No prejudice was shown to have been caused to petitioner by announcing judgment after such delay---Supreme Court upheld impugned judgment in circumstances.

Muhammad Bakhsh's case 1989 SCMR 1473; Juma Khan's case PLD 2002 SC 823; Samiul Haq's case 2001 SCMR 1053; Ali Khan Subanpoto's case 1997 SCMR 1590; Raja Hamayun Sarfraz Khan's case2007 SCMR 307; Syed Iftikhar-ud-Din Haider Gardezi's case 1996 SCMR 669 and Muhammad Ovais's case 2007 SCMR 1587 rel.

(b) Administration of justice---

----Every case is to be decided on its own peculiar circumstances and facts.

----S. 12---Instructions/rules/policy issued by Inspector-General of Police without approval of Provincial Government---Validity---Such instructions/rules would not be valid and would have no legal sanctity---Long practice of department to follow such instructions/rules conflicting with parent statute or rules could not remain operative, but must be ignored---No one would be obliged to obey such directions/instructions/departmental practice---Principles.

Qayyum Nawaz Khan's case 1999 SCMR 1594 ref.

Siddiq Akbar's case 1998 SCMR 2013 rel.

(d) Locus poenitentiae, principle of---

----Award of benefit to a person in violation of law would not attract principle of locus poenitentiae.

Jalaluddin's case PLD 1992 SC 207 fol.

(e) Interpretation of statutes---

----Departmental construction of statute, though not binding on court, could be taken into consideration, if same was followed by department consistently.

Siddiq Akbar's case 1998 SCMR 2013 rel.

(f) Interpretation of statutes---

----Conflict between departmental practice/instructions/directions and rules---Effect---Rules would prevail---Principles.

The role of the directions/instructions is to supplement, never to contradict or conflict with rules. A direction/instruction cannot abridge or run counter to statutory provisions. If there is any conflict between the rules and the directions/instructions/departmental practice, then rules prevail. Instructions or departmental practice cannot amend or supersede the rules. A rule can be amended by another rule and not by a direction/instruction/departmental practice.

Departmental practice consistently followed by the department with regard to any issue or provision has force of law, but it is not absolute in all respect.

The principle of locus poenitentiae has more force than the principle qua the departmental practice followed by the department qua any instructions or rules consistently since long. Where the action is in derogation of section or law, then the locus poenitentiae is not absolute.

Anwar Ahmed Lari's case 1990 SCMR 1013; Chairman, Regional Transport Authority's case PLD 1991 SC 14; Messrs Airport Support Services' case 1998 SCMR 2268 and Jalaluddin's case PLD 1992 SC 207 ref.

(g) Interpretation of statutes---

----Departmental instructions and statutes must be read as an organic whole.

(h) Words and phrases---

----"Approval "---Meaning.

Black's Lay? Dictionary and Aftab Ahmed Khan Sherpao's case PLD 1997 Pesh. 93 ref.

(i) Words and phrases---

----"Approval" and "consultation or consent"---Comparison---Approval is more mandatory and stronger as compared to the word consultation or consent.

(j) Constitution of Pakistan---

----Art.9---Due process of law, doctrine of---Scope---Right of access to justice to all was founded on such doctrine---Such right would include a right to be treated according to law, a right to have a fair and proper trial and a right to have an impartial court or Tribunal---Justice could be done only by an independent judiciary---Principles.

Sharaf Faridi and 3 others v. The Federation of Pakistan PLD 1989 Kar. 404 and Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 rel.

(k) Civil Service---

----Seniority is a vested right of an employee.

Anwar Ahmed Lari's case 1990 SCMR 1013 rel.

(l) Public offices---

----Government offices being public trust should be regulated in a manner to promote sense of public service with a view to make a welfare State---Principles stated.

The Government officers are like public trust and, therefore, the same should be regulated in fair, transparent and economically so as to promote the sense of public service and thereby to make a welfare State. The public offices should not be held for improper motives. The social justice and economic justice can also be done through fair administrative policies. No policy can be congenial, if it breeds corruption.

(m) Civil service---

----Promotion---Out-of-turn promotion---Scope.

Out of turn promotion is not only against the Constitution, but also against Injunctions of Islam. Out of turn promotion in a public department generates frustration and thereby diminishes the spirit of public service. It generates undue preference in a public service. Element of reward and award is good to install the spirit of service of community, but it should not be made basis of accelerated promotion.

Qayyum Nawaz Khan's case 1999 SCMR 1594 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Petitioners.

Ms. Afshan Ghazanfar, A.A.-G., Naseer Baloch, DSP (Legal), Lahore and Fazal Rahim, DSP (Legal) Sheikhupura for official Respondents.

Nemo for Proforma Respondents.

SCMR 2011 SUPREME COURT 420 #

2011 SCMR 420

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Mahmood Akhtar Shahid Siddiqui and Khilji Arif Hussain, JJ

Syed ZIA HAIDER RIZVI and others---Appellants

Versus

DEPUTY COMMISSIONER OF WEALTH TAX, LAHORE and others---Respondents

Civil Appeals Nos. 99, 100 to 106 of 2006, decided on 5th January, 2011.

(On appeal from the judgment dated 29-9-2005 of the Lahore High Court, Lahore passed in Writ Petition No. 15148 of 1999, WTA Nos.194, 195, 196, 206, 198, 199 and 200 of 2002).

(a) Wealth Tax Act (XV of 1963)---

----S. 27---High Court, appellate jurisdiction of---Scope---Normally High Court would answer question of law arising out of order of Tribunal and then send copy of its judgment to Tribunal for disposing of case in its conformity.

(b) Constitution of Pakistan---

----Art. 68---Parliament---Requirement of a statute to place any notification or Rules before Parliament---Mode and purpose stated.

In a democratic setup, every Government is responsible to its Legislature. When any statute requires mere lying of any notification or Rules before the Legislature, its executive, viz. State Government, comes under the scrutiny of the concerned Legislature. Every function and every exercise of power by the State Government is under one or other Ministry, who in turn is accountable to the Legislature concerned. Where any document, Rule or notification requires placement before any House or when placed, the said House inherently acquires the jurisdiction over the same. Irrespective of the fact that such rules or notifications may not be under purview of its modification, such members may seek explanation from such Ministry of their inaction, arbitrariness etc.

Laying before the House of Parliament are made in the three different ways. Laying of any Rule may be subjected to any negative resolution within a specified period or may be subjected to its confirmation. This is spoken as negative and positive resolution respectively. Third may be mere laying before the House.

Legislature, Constitutional and Administrative Law Stanely De Smith and Rodney Brazier, 7th Edition; Administrative Law by HWR Wade and C.F. Forsyth, 10th Edition, page 765; Atlas Cycle Industries Ltd. v. State of Haryana AIR 1979 SC 1149 and Maulana Nur-ul-Haq v. Ibrahim Khalil 2010 SCMR 1305 rel.

----S. 5(2) & Second Sched. Cl. 12(2)---Exemption from wealth tax in respect of shop owned/occupied by assessee for business purposes---Refusal of authority to accept such claim on ground that exemption notification, though duly gazetted, was invalid for want of its placement before National Assembly---Validity---Second Schedule of Wealth Tax Act, 1963 dealing with exemption from tax only had no concern with imposition of any new tax or change of rate of tax levied under Wealth Tax Act, 1963---Requirement of S. 5(2) of Wealth Tax Act, 1963 for placement before National Assembly notification issued by Federal Government regarding any amendment in its Second Schedule was not mandatory, rather its purpose was to give information to legislature---Principles.

Iram Ghee Mills (Pvt.) Lahore v. Income Tax Appellate Tribunal, Lahore, Commissioner of Income-Tax, Central Zone `B' v. Messrs Farrokh Chemical Industries 1992 PTD 523; Habibur Rehman v. Ali Zafar Siddiqi 1992 SCMR 2351; Rana Muhammad Jamil v. The Punjab Road Transport Board, Lahore and others PLD 1957 (W.P.) Lah. 1; Asim Khan v. Muhammad Fazil Khan PLD 1983 SC 387; Mian Rafiud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others PLD 1971 SC 252; Iftikhar Ahmad Shaikh v. Ch. Muhammad Din and 2 others PLD 1990 Lah. 461; Zulfiqar and others v. Shandat Khan PLD 2007 SC 582; Overseas Pakistanis Foundation and another v. Sqn. Ldr. (Retd) Syed Mukhtar Ali Shah and another 2007 SCMR 569; Reference No.1 of 1988, Made by the President of Pakistan PLD 1989 SC 75; Messrs Chenab Fabrics and Processing Mills Ltd. Faisalabad v. Government of Pakistan through Secretary, Ministry of Finance, Islamabad and 5 others, 2006 PTD 1412; Commissioner of Income Tax, Zone-C, Lahore and others v. Messrs Kashmir Edibile Oils Ltd. and others 2006 SCMR 109; Mst. Musarrat Umar Daraz v. Income Tax Appellate Tribunal, Lahore and 2 others 2006 PTD 1743 and Income-tax Appellate Tribunal Pakistan, 2000 PTD (Trib.) 2133 ref.

Legislature, Constitutional and Administrative Law, Stanely De Smith and Rodney Brazier, 7th Edition; Administrative Law by HWR Wade and C.F. Forsyth, 10th Edition, page 765; Atlas Cycle Industries Ltd. v. State of Haryana AIR 1979 SC 1149 and Maulana Nur-ul-Haq v. Ibrahim Khalil 2010 SCMR 1305 rel.

(d) Interpretation of statutes---

----Mandatory or directory statute, determination of---Test stated.

There is no absolute test by which it may be determined whether a statute is mandatory or directory, the primary rule is to ascertain the Legislative intent as revealed by an examination of the whole Act.

Siraj-ud-Din Khalid, Advocate Supreme Court for Appellants (in C.As. Nos. 99, 104 to 106 of 2006).

Shahbaz Butt, Advocate Supreme Court for Appellants (in C.As. Nos. 100 to 103 of 2006).

Muhammad Ilyas Khan, Senior Advocate Supreme Court for Respondents (in C.As. Nos. 99, 104 to 106 of 2006).

Muhammad Ilyas Khan Senior Advocate Supreme Court, Legal Advisor Income Tax for Respondents (in C.As. Nos. 99, 104 to 106 of 2006).

Date of hearing: 26th November, 2010.

SCMR 2011 SUPREME COURT 429 #

2011 SCMR 429

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C J., Tariq Parvez Khan and Ghulam Rabbani, JJ

KHIZAR HAYAT---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 652 in Jail Petition No. 127 of 2009, decided on 5th January, 2011.

(On appeal from the judgment dated 19-1-2009 passed by the Lahore High Court, in Criminal Appeal No. 590 of 2003).

(a) Penal Code (XLV of 1860)---

----Ss. 302(a) & 302(b)---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court for reappraisal of evidence to see; whether there were material contradictions in ocular evidence and medical evidence adduced by prosecution; and whether accused could have been convicted under S. 302(a), P.P.C. instead of 302(b), P.P.C.

(b) Penal Code (XLV of 1860)---

----S. 302---Qatl-e-amd---Appraisal of evidence---Interested witness---Scope---Statement of witness on account of being interested can only be discarded if it is proved that interested witness has ulterior motive on account of enmity or any other consideration.

----S.302---Qatl-e-amd---Appraisal of evidence---Interested witness---Corroborated statement---Scope---Statement of interested witness cannot be taken into consideration without corroboration and even uncorroborated version can be relied upon if supported by surrounding circumstances.

Khadim Hussain v. State 2010 SCMR 1090; Ashfaq Ahmed v. State 2007 SCMR 641; Shaukat Ali v. The State PLD 2007 SC 93; Muhammad Mansha v. The State 2001 SCMR 199; Iqbal alias Bala v. The State 1994 SCMR 1 and Muhammad Ehsan v. State 2006 SCMR 1857 rel.

(d) Penal Code (XLV of 1860)---

---Ss. 302(a) & 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 17---Qatl-e-amd---Re-appraisal of evidence---Substitution of real culprit---Conviction as Qisas---Principle---Tazkiya-tul-Shahood, inquiry of---Accused was convicted by Trial Court under S. 302(a), P.P.C. and was sentenced to death as Qisas and the same was maintained by High Court---Validity---Incident was a case of single accused, who had fired upon deceased, therefore, substitution of a culprit was not possible--Such was a rare phenomenon where a witness whose close relative had been murdered would substitute the accused with an innocent person thereby allowing actual accused to go scot-free---Statements of prosecution witnesses were fully corroborated to that of each other and the same was evident from their examination-in-chief and cross-examination---No exercise was carried out by Trial Court or by High Court to ascertain whether prosecution witnesses fulfilled requirement of Tazkiya-tul-Shahood, for which an inquiry had to be conducted---If prosecution had succeeded in establishing offence of Qatl-e-amd of deceased, there was no need to award punishment of death to accused as Qisas under S. 302(a), P.P.C. because Court was empowered to award punishment of death or life as Ta'azir under S. 302(6), P. P.C.---Supreme Court maintained the conviction and converted death sentence awarded as Qisas to death sentence awarded as Ta'azir---Appeal was dismissed.

Abdus Salam v. The State 2000 SCMR 338 and Ghulam Ali v. The State PLD 1986 SC 741 rel.

(e) Penal Code (XLV 1860)---

----Ss. 302(a) & 302(b)---Appraisal of evidence---Medical evidence---Corroboration---Fire-arm injury on head---Scope---As head was not a stagnant part of body and deceased on whom firing had been made, might had been revolving his head to save the same, therefore, causing injuries on different parts of head could not be considered to hold that there was contradiction in ocular and medical evidence furnished by doctors.

Aftab Ahmed Khan, Advocate Supreme Court for Appellant.

M. Irfan Malik, Additional P.-G., Punjab for the State.

SCMR 2011 SUPREME COURT 437 #

2011 SCMR 437

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ

IFFAT JABEEN---Appellant

Versus

DISTRICT EDUCATION OFFICER (M.E.E.), LAHORE and another---Respondents

Civil Appeal No. 592 of 2006, decided on 2nd October, 2009.

(On Appeal from the judgment, dated 22-7-2005 passed by the Punjab Service Tribunal, Lahore, in Appeal No.2396 of 2003).

(a) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 5 & 6---Constitution of Pakistan, Art.212(3)---Leave to appeal was granted by Supreme Court to consider the contention of petitioner that she was graduate at the time of her appointment and thereafter, she further improved her educational qualification as M.A., B-Ed and C.T. during her service and order passed by authorities of removal of petitioner from service was not sustainable at law inasmuch as there was no concealment or misrepresentation of any material fact on the part of her who had rendered satisfactory service before removal from service and further contended that quantum of punishment did not commensurate the nature of charge.

(b) Government Servants (Efficiency and Discipline) Rules, 1973---

---Rr. 5 & 6---Removal from service---Imposing of major penalty---Concealing of facts---Civil servant was appointed as untrained teacher ' but she received salary of regular teacher---Authorities removed the civil servant from service on the allegation of securing "service by playing fraud with authorities---Validity---During her service, civil servant improved her qualification as M.A., B.Ed. and C.T. and also gained experience as a teacher for ten years---Service Tribunal decided the case in violation of dictum laid down by Supreme Court and even without perusing record after application of mind, as the same was a condition precedent for passing a decision---Supreme Court set aside the judgment passed by Service Tribunal and reinstated the civil servant in service without back-benefits in accordance with law, as she did not perform any duty---Appeal was allowed.

Zulfiqar Ali's case 2006 SCMR 678; Abdul Waheed's case 2004 SCMR 303; Secretary to Government of N.-W.F.P.'s case 1996 SCMR 413; Abdul Hafeez Abbasi's case 2002 SCMR 1034; G.M. Sikdar's case PLD 1970 SC 158 and Mollah Ejahar Ali's case PLD 1970 SC 173 rel.

----Arts. 189 & 190-Judgment of Supreme Court is binding on each and every organ of State.

(d) Administration of justice---

----Application of correct law---Improper advice of counsel---Effect---Judge must wear all laws of country on the sleeves of his robe and failure of counsel as to properly advise him is not a complete excuse in the matter.

Muhammad Sarwar's case PLD 1969 SC 278 rel.

Mian Mahmood Hussain, Advocate Supreme Court for Appellant.

Saeed Yousaf Khan, Additional Advocate-General Punjab, Ch. Muhammad Aslam, Law Officer/Assistant Education Officer, D.E.O. Office, Lahore for Respondents.

Date of hearing: 2nd October, 2009.

SCMR 2011 SUPREME COURT 442 #

2011 SCMR 442

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmed, JJ

Engineer HAFEEZULLAH---Petitioner

Versus

C.E.O. (PTCL) and others---Respondents

Civil Petition No. 85-Q of 2009, decided on 24th June, 2010.

(On appeal from the judgment dated 30-4-2009 passed by the High Court of Balochistan, Quetta in Constitution Petition No. 213 of 2008).

Civil Servants (Confirmation) Rules, 1993---

----R. 2 (b)---Fundamental Rules, R. 12-A---Constitution of Pakistan, Art. 185 (3)---Lien with parent department---Prerequisites---Petitioner was serving with Pakistan Telecommunication Corporation Limited (PTCL) and from there he joined Public Health Engineering Department through Public Service Commission---After joining of new department by petitioner, PTCL announced Volunteer Separation Scheme---Claim of petitioner was that when the Scheme was announced he had lien with PTCL, therefore, he was entitled to all benefits under the Scheme---Validity---Lien under R. 2 (b) of Civil Servants (Confirmation) Rules, 1993, meant the title of civil servant to hold substantively a post on which he had been confirmed---Employee under Fundamental Rule, 12-A, on substantive appointment to any permanent post acquired a lien on that post and ceased to hold any lien previously acquired on any other post---For termination of lien of a permanent civil servant from his original department, three prerequisites had to be satisfied which were that the civil servant concerned had joined other department on regular basis; that the joining to other department was result of his selection; and that the selection was through a regular selection process---If above mentioned conditions were satisfied and civil servant had contested for such joining, he would have no claim about his lien in the previous department after expiry of probationary period---Lien could not be retained by petitioner in PTCL after joining Public Health Engineering Department on regular basis through Public Service Commission---Volunteer Separation Scheme could not be made applicable in case of petitioner which was launched after his joining Public Health Engineering Department which otherwise could not be availed being a regular government servant in Public Health Engineering Department---Supreme Court declined to exercise discretion in favour of petitioner and did not interfere in the judgment passed by High Court---Leave to appeal was refused.

Sajjad Hussain v. Secretary, Establishment Division 1996 SCMR 284; Muhammad Aslam v. Collector of Customs 1999 PLC (CS) 751; Ghulam Qadir v. Multan Central Co-op. Bank Ltd. PLD 1986 SC 1386; Dauran Khan v. Naseer Muhammad Khan PLD 1964 SC 136; W.H. King v. Gajendragadkar AIR 1950 Born. 380; Hayat Muhammad v. Election Authority 1985 SCMR 1909; Hayat Muhammad and 4 others v. Election Authority and others 1985 SCMR 1909; Jai Singh v. State AIR 1952 All. 991 and Jai Singh v. State 1952 Cri. L. Jour 1755 ref.

Petitioner in person.

Kamran Murtaza, Advocate Supreme Court and M.W.N. Kohli, Advocate-on-Record for Respondents Nos. 1 to 3.

Date of hearing: 24th June, 2010.

SCMR 2011 SUPREME COURT 446 #

2011 SCMR 446

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

NATIONAL BANK OF PAKISTAN through Chairman---Appellant

Versus

NASIM ARIF ABBASI and others---Respondents

Civil Appeals Nos. 109-K to 120-K, 54-L, 726 and 727 of 2009, decided on 15th December, 2010.

(On appeal from the judgment dated 20-2-2009 passed by the High Court of Sindh at Karachi in C.P. No. 2241 of 2006, 1849 to 1854, 2033, D-262, D-1268 and D-1337 of 2007 and D-2160 of 2008; judgment dated 17-10-2008 passed by the Lahore High Court Lahore in W.P. No. 9002 of 2006-and order dated 3-9-2004 passed by the Federal Service Tribunal in Appeals Nos. 1301 and 1302(L) of 1999).

(a) Constitution of Pakistan---

----Arts., 185 (3), 199 & 212---Leave to appeal was granted by Supreme Court to consider; whether High Court was justified in exercising its jurisdiction under Art.199 of the Constitution in view of bar contained in Art. 212 of the Constitution in respect of terms and conditions of service of employees governed by statutory rules and granting relief prayed for.

(b) Constitution of Pakistan---

----Art. 189---Judgments of Supreme Court---Conflict---In case of conflict between judgments of Supreme Court, the judgment of larger Bench prevails.

Atta Ullah v. Mst. Surraya Parveen 2006 SCMR 1637; Sardar Muhammad Nawaz v. Firdous Begum 2008 SCMR 404 and Chairman, State Life Insurance Corporation v. Hamayun Irfan 2010 SCMR 1495 rel.

----Arts. 25. & 199---Constitutional petition before High Court--Maintainability---Statutory rules---Discrimination---Golden Handshake Scheme---Principle of reasonable classification-Applicability--Respondents were ex-employees of appellant bank who opted for Golden Handshake Scheme---High Court found respondents entitled to . those benefits which bank offered to its employees after retirement of respondents---Validity---Respondents having exercised option to retire under Golden Handshake Scheme, were deemed to be retired from service on and from the cut-off-date-On such score, they could not be treated at par with those employees who did not exercise such option and were still continuing in service---Reasonable classification existed between two categories of employees i.e. those who exercised the option and those who did not exercise the option---Respondents failed to point out discrimination prohibited under Art. 25 of the Constitution and to make out any valid grievance on account of the fact that they were actually relieved from service on a subsequent date---Respondents were paid emoluments in full for the period they worked after they had opted for retirement under Golden Handshake Scheme and had received retirement benefits accordingly---No case having been made out by respondents, therefore, judgments passed by High Court were set aside---Appeal was allowed.

NBP v. Siddique Akbar C.P.L.A. No. 350 of 2000; S.M. Tanveer Nusrat v. National Bank of Pakistan C.P.L.A. No. 2461-L of 2002; Rana Abdul Ghafoor v. President, National Bank of Pakistan C.P.L.A. No. 3378-L of 2001; Naseem Arif Abbasi v. National Bank of Pakistan C.P.L.A. No. 1028-K of 2001; Muhammad Mubeen-us-Salam's case PLD 2006 SC 602 and Muhammad Idrees' case PLD 2007 SC 681 ref.

Khyber Zaman v. Governor, State Bank of Pakistan 2005 SCMR 235 and Tarachand v. Karachi Water and Sewerage Board 2005 YLR 900 distinguished.

I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 rel.

Khawaja Muhammad Farooq, Senior Advocate Supreme Court and K.A. Wahab, Advocate-on-Record (Absent) for Appellant (in C.As. Nos. 109-K to 120-K of 2009).

Noor Muhammad Chandio, Advocate Supreme Court for Appellant (in C.A. No. 54-L of 2009).

Fakharuddin G. Ebrahim, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.As. Nos.109-K to 115-K, 117-K, 118-K and 120-K of 2009).

Muhammad Akram Khawaja, Advocate Supreme Court for Respondents (in C.A. No. 54-L of 2009).

Qari Abdul Rashid, Advocate Supreme Court for Respondents (in C.A. No. 727 of 2009).

Nemo for Respondents (in C.A. 116-K of 2009).

Ex parte for Respondents (in C.A. No. 726 of 2009).

Date of hearing: 15th December, 2010.

SCMR 2011 SUPREME COURT 455 #

2011 SCMR 455

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

MAZHAR HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 222 of 2009, decided on 27th May, 2009.

(Against the judgment dated 26-3-2009 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in Criminal Appeal No. 35 of 2002 and Murder Reference No. 434 of 2004).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Appraisal of evidence---High Court while maintaining the conviction of accused had converted his death sentence into imprisonment for We on cogent reasons---Accused, no doubt, had been raising the plea of self-defence since the very inception of the case, but he had exceeded the same---Admittedly accused had murdered two persons by firing with his weapon on vital parts of their bodies---Despite the fact of the complainant being an aggressor, accused had exceeded his right of private defence, as the injuries received by him did not entitle him to take the lives of two persons---Impugned judgment of High Court did not warrant any interference---Leave to appeal was refused to accused by Supreme Court in circumstances.

(b) Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan, Art. 185(3)---Sentence, interference with---Principle---Supreme Court generally does not interfere with the legal sentence awarded to accused by the courts below while exercising power under Article 185(3) of the Constitution, which is discretionary in nature.

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for Petitioner.

Nemo for the State.

SCMR 2011 SUPREME COURT 460 #

2011 SCMR 460

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Sair Ali and Tariq Parvez Khan, JJ

MUHAMMAD ILYAS and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 285 and 286 of 2005, decided on 21st January, 2011.

(On appeal from the judgment dated 28-3-2002 passed by the Lahore High Court, Lahore in Criminal Appeal No. 160 of 1996).

(a) Penal Code (XLV of 1860)---

----Ss.302/324/397/458---Qatl-e-amd and robbery---Leave to appeal was granted by Supreme Court to reappraise evidence on record in accordance with principles laid down by Supreme Court for safe administration of criminal justice and to consider submissions, inconsistencies and contradictions in prosecution evidence.

(b) Penal Code (XLV of 1860)---

----S. 302--- Qatl-e-amd--- Evidence--- Contradictions--- Effect---Contradictions which are not grave in nature can be ignored safely as minor contradictions creep in with passage of time---Merely on the basis of contradictions, statement of a prosecution witness cannot be discarded if corroborated by other incriminating material.

----S.302---Qatl-e-amd---Ocular and medical evidence---Comparison---If there is forthright and convincing eye account that is preferred as compared to that of medical evidence---Medical evidence irrespective of the fact whether it is consistent with ocular version or otherwise it cannot be corroborated with ocular evidence which is tainted with enmity---It is not medical evidence to determine question of guilt or innocence but it is ocular version which is required to be taken into consideration at first instance.

Sarfraz v. The State 2000 SCMR 1758; Muhammad Hanif v. State PLD 1993 SC 895 and Machia v. State PLD 1976 SC 695 rel.

(d) Penal Code (XLV of 1860)---

----Ss. 302/324/397/458---Qatl-a-amd, attempt to commit Qatl-e-amd, dacoity and house trespass by night---Reappraisal of evidence---Injured witness---Suppression of facts---Quantum of sentence---Conviction and sentence of death awarded to accused persons by Trial Court was maintained by High Court---Validity---Statements of prosecution witnesses were rightly considered and relied upon by Trial Court and High Court---No serious enmity was either alleged or substantiated and prosecution witness received injuries during incident and hence question of friendship or enmity was not relevant but intrinsic value of statement of injured prosecution witness was to be considered by whom a specific role was assigned to accused and besides that the witness stood firm to the test of cross-examination---Prosecution had established guilt of accused to the hilt but factual aspects were concealed rather distorted and complainant as well as accused did not come forward with true and actual background which culminated into unfortunate incident rather they had attempted to suppress their own part in the occurrence---In view of distortion and. concealment of reality by complainant and other circumstances conviction and sentence awarded under S. 302(b), P.P.C. was converted into that of life imprisonment---Appeal was allowed accordingly.

Iqbal alias Bhalla and 2 others v. The State 1994 SCMR 1; Abdul Ghafoor v. The State 2000 SCMR 919; Sarfraz v. The State 2000 SCMR 1758 and Syed Ali v. Nibaran Mollah PLD 1962 SC 502 rel.

Sardar Asmatullah, Advocate Supreme Court for Appellants.

Shaukat Aziz Siddiqui, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for the Complainant.

Muhammad Siddique Khan Baloch, DPG for the State (in both cases).

Date of hearing: 13th April, 2010.

SCMR 2011 SUPREME COURT 472 #

2011 SCMR 472

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

KARACHI DEVELOPMENT AUTHORITY and others---Appellants

Versus

Syed IQBAL AHMED and others---Respondents

Civil Appeals Nos. 983 to 995 of 2003, decided on 8th February, 2010.

(On appeal from judgments dated 7-2-2002 passed by the High Court of Sindh, Karachi in C.Ps. Nos. 948 of 1996, etc.).

Constitution of Pakistan---

----Art. 185 (3)---Non-utilization Fee---Extent---Respondents or their predecessor-in-interest were allotted various plots by Karachi Development Authority but they failed to raise construction within specified period of time---High Court in exercise of constitutional jurisdiction declared 'Non-utilization Fee imposed by authorities in excess of the amount stipulated under original contract, as invalid---Validity---As High Court did not dilate upon vires of notifications and resolution passed by Karachi Development Authority, therefore, respondents would be free to challenge the same in High Court afresh--Supreme Court directed the High Court to dispose of the matter without being influenced or prejudiced in any manner from the judgment already passed by High Court as well as demand notice which was based on notifications in question---Appeal was disposed of.

Nemo for Appellants.

R.F. Virjee, Advocate Supreme Court for Respondents (in C.A. No. 985 of 2003).

H.A. Rehmani, Advocate Supreme Court for Respondents (in C.As. Nos. 986 and 990 of 2003).

Hashmat Ali Habib, Advocate Supreme Court for Respondents (in C.As. Nos. 991 and 992 of 2003).

Other Respondents not represented.

Date of hearing: 8th February, 2010.

SCMR 2011 SUPREME COURT 474 #

2011 SCMR 474

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Jawwad S. Khawaja, JJ

MUHAMMAD SALEEM---Petitioner

Versus

MUHAMMAD AZAN and another---Respondents

Criminal Petition No. 308 of 2009, decided on 23rd June, 2009.

(Against the judgment dated 15-4-2009 passed by the Lahore High Court, Multan Bench, Multan, in Murder Reference No. 145 of 2003, Criminal Appeal No. 64 of 2003 and Criminal Revision No. 72 of 2003).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), S. 129(g)---Constitution of Pakistan, Art. 185(3)---Reappraisal of evidence---Prosecution evidence, improvements in---Effect---Medical and ocular evidence--Conflict-Non-production of injured witness---Presumption---Enhancing of sentence---Principles---Out of two accused sent for trial, one was convicted and sentenced to death by Trial Court and other was acquitted but High Court acquitted the other accused also---Validity---Prosecution witnesses while appearing in court made improvements in their statements to strengthen prosecution case, such improvements had cast serious doubt on veracity of such witnesses, therefore, High Court was justified to come to the conclusion that such statements were not worthy of reliance---High Court was also justified to come to conclusion that medical evidence was in conflict with ocular evidence, therefore, reliance on such ocular testimony was unsafe---Recovery was also ignored by High Court with cogent reasons---One person was injured during incident but he was not produced by prosecution without sufficient reason, therefore, High Court was justified to presume that had the injured person been produced, he would not have supported prosecution case---For enhancement of sentence, order under appeal should be either perverse or arbitrary or without any substantive reason---Supreme Court did not see any illegality committed by High Court while acquitting accused, as he was acquitted after judicious application of mind and after considering each and every piece of evidence---Supreme Court did not find any infirmity or illegality in findings of innocence recorded by High Court regarding accused---Leave to appeal was refused.

Saeed Muhammad Shah's case 1993 SCMR 550; Muhammad Shafique Ahmad's case PLD 1981 SC 472; Bagh Ali's case PLD 1973 SC 321; Zarshad's case 1972 SCMR 644; Darey Khan's case 1972 SCMR 578; Shah Bakhsh's case 1990 SCMR 158; Muhammad Shafqat's case 1970 SCMR 713 and Ghulam Sikandar's case PLD 1985 SC 11 rel.

(b) Criminal Procedure Code (V of 1898)---

----S. 540---Power to summon material witness---Additional evidence---Powers of court---Raising of new plea---Scope---Court has wide powers to call or recall any witness but such powers are not to be exercised to fill in lacuna left by any party---Court has to exercise such powers judiciously for just decision of case keeping in view circumstances of each and every case---Court generally does not allow to raise such plea for first time before Supreme Court with sole object to create doubts about judgments of courts below.

Haji Aurangzeb's case PLD 2004 SC 160 and Sh. Muhammad Ahmad's case PLD 2003 SC 704 rel.

Ch. M. Munir Akhtar Minhas, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd June, 2009.

SCMR 2011 SUPREME COURT 480 #

2011 SCMR 480

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Rahmat Hussain Jafferi and Ghulam Rabbani, JJ

ADMINISTRATOR/PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY KARACHI---Petitioner

Versus

GHULAM MUSTAFA KHAN and another---Respondents

Civil Petition No. 167-K of 2010, decided on 20th May, 2010.

(On appeal from the judgment dated 26-1-2010 passed by the High Court of Sindh at Karachi in C.P. No. D-1767 of 2006).

Constitution of Pakistan---

----Art. 185 (3)---Civil service---Fresh proceedings---Scope---Natural justice, principles of---Applicability---Departmental proceedings against civil servant were set aside by Service Tribunal and the judgment was maintained by Supreme Court---Subsequently, authorities once again initiated proceedings on the same charge, which proceedings were set aside by High Court in exercise of constitutional jurisdiction---Plea raised by authorities was that the civil servant was proceeded against afresh---Validity---Once Service Tribunal had set aside the proceedings against civil servant and that judgment was not interfered with by Supreme Court on facts, there was no occasion to again proceed against him for same charges---Such act of authorities was against the principles of natural justice---Initiating fresh proceedings did not mean that civil servant should be proceeded again on the same charges, which were nt found correct in earlier proceedings---Inquiry could only be conducted if there were charges other than the earlier charges on which service of civil servant was terminated---High Court had exercised jurisdiction in proper manner, therefore, no interference was called for---Leave to appeal was refused.

Khalid Javed, Advocate Supreme Court and Shiraz Iqbal Chaudhry, Advocate-on-Record for Petitioner.

M. Naseem, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Respondents.

SCMR 2011 SUPREME COURT 484 #

2011 SCMR 484

[Supreme Court of Pakistan]

Present: Javed Iqbal and Jawwad S. Khawaja, JJ

NAZIR AHMED---Petitioner

Versus

CAPITAL CITY POLICE OFFICER, LAHORE and another---Respondents

Civil Petition No. 2526-L of 2009, decided on 3rd November, 2010.

(On appeal from the judgment dated 19-10-2009 passed by the Punjab Service Tribunal, Lahore in Appeal No. 3594 of 2007).

(a) Constitution of Pakistan---

----Art. 13---Initiation of disciplinary proceedings against an employee after his acquittal in criminal case---Validity--Criminal proceedings and disciplinary proceedings were not synonymous or interchangeable for having distinct features and characteristics--- Provisions of Art. 13 of the Constitution and maxim "nemo debet bis vexari pro una et eadem causa" (no person should be twice disturbed for the same cause) would not apply to such case.

Bejoy Dutta v. The King AIR 1951 Cal. 452; Bejoy Datta v. The King ILR 1950 1 Cal 502; A.M. Rangachariar v. Venkataswami AIR 1935 Mad. 56; Public Prosecutor v. Sabapathy Chetty AIR 1938 Mad. 847 and Rahman Smail v. Emperor 39 Cri L Jour 712-rel.

(b) Constitution of Pakistan---

----Art. 13---Provisions of Art. 13 of the Constitution---Applicability---Essential conditions stated.

Article 13 of the Constitution sanctifies the well-settled principle of law that no person will be tried for an offence on the same set of facts on which he has already been acquitted or convicted. For applicability of the rule of "autre fois acquit", essential conditions to be satisfied are: (1) there must have been a trial of the accused for the offence charged against him, (2) the trial must have been by a court of competent jurisdiction, and (3) there must have been a judgment or order of acquittal, (4) the parties in the two trials must be the same, (5) fact-in-issue in the earlier trial must be identical with what is sought to be re-agitated in the subsequent trial.

Ismail A. Rehman v. Muhammad Sadiq PLD 1990 Kar. 286; Ramzan Bibi v. Muzaffar Hussain PLD 1967 Lah. 186 and State v. Muhammad Moosa PLD 1970 Kar. 386 rel.

Sheikh Masood Akhtar, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd November, 2010.

SCMR 2011 SUPREME COURT 487 #

2011 SCMR 487

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

Major (Retd.) AHSAN-UL-HAQUE---Petitioner

Versus

MUHAMMAD EJAZ---Respondent

Civil Petition No. 1281 of 2010, decided on 2nd September, 2010.

(On appeal against the judgment dated 21-6-2010 passed by Lahore High Court, Rawalpindi Bench in F.A.O. No. 64 of 2007).

Cantonments Rent Restriction Act (XI of 1963)---

----S. 17---Ejectment petition---Ground of bona fide personal need of landlord---Non-mentioning in ejectment petition and affidavit-in-evidence that landlord serving as Trade Commissioner in Canadian Embassy was about to retire; and that he intended to establish a Trading House in demised premises after retirement, but disclosure of such facts by him during cross-examination-Non-production of any document by landlord to show his actual retirement from service--Admission of landlord during cross-examination that adjacent property owned by him was got vacated and sold by him---Effect---No legal requirement existed to the effect that a party must offer all details through pleadings as long as relevant and necessary jurisdictional fact had been stated therein---Details of landlord's requirement of demised premises for his occupation had come on record through courtesy of cross-examiner, for which landlord could not be punished---Landlord's claim that he wanted to set up a Trading House was perfectly reasonable and acceptable as he had experience in such field for having worked with a foreign mission as its Trade Commissioner for twenty years---Landlord had sufficiently discharged onus placed on him---Tenant was bound to show that landlord's claim about his retirement from service was false, but tenant had not made any such attempt nor did suggest to landlord that his such claim was false---Landlord had not secured adjacent property through a court of law or Rent Controller, but had secured same after payment of money to its tenant---Ejectment of a tenant by not taking recourse to provision of Cantonments Restriction Act, 1963, but through a private arrangement would not be a clog on a landlord's right to seek evicition of a tenant thereunder---Remedies of enhancement of rent and ejectment of tenant could be availed by landlord simultaneously---Ejectment petition was accepted in circumstances.

Gulzarin Kiani, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Shahid Mehmood, Advocate Supreme Court for Respondents.

SCMR 2011 SUPREME COURT 492 #

2011 SCMR 492

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Sair Ali and Tariq Pervez Khan, JJ

ZULFIQAR AHMAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 733 of 2006, decided on 5th January, 2011.

(On appeal from the judgment dated 12-7-2006 of the Lahore High Court, Lahore passed in Cr. A. No. 502 of 2001 and M.R. No.259 of 2001).

(a) Penal Code (XLV of 1860)---

----S.302 (b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Leave to appeal was granted by Supreme Court to consider; whether prosecution succeeded in establishing guilt of murder of deceased against accused in view of the fact that on the same set of evidence three persons had been acquitted of the charge.

(b) Criminal trial---

----Evidence---Minor contradictions---Effect---Minor contradictions do creep in with the passage of time and can be ignored.

----Evidence---Related witness---Merely on the ground of inter se relationship, the statement of a witness cannot be brushed aside.

Iqbal alias Bala v. The State 1994 SCMR 1; Khalil Ahmed v. The State 1976 SCMR 161 and Allah Ditta and others v. The State 1970 SCMR 734 rel.

(d) Penal Code (XLV of 1860)---

----S.302 (b)---Qatl-e-amd---Reappraisal of evidence---Natural witnesses---Corroboration, rule of---Principle---Both the accused were convicted by Trial Court under S. 302(b) of P.P.C. and were sentenced to death---Conviction and sentence awarded by Trial Court was maintained by High Court---Validity---Widow and father of deceased were inmates of house and thus could be termed as natural witnesses and their statements had rightly been relied upon by Trial Court and High Court---Medical evidence was in consonance with ocular account and could be considered as a corroboratory factor which was rightly taken into consideration by Trial Court and High Court---Supreme Court declined to consider the plea of non-corroboration of assailants with commission of alleged offence as corroboration was not a principle of law but a rule of prudence---No evidence had come on record showing prior concert of mind or common intention and thus a lenient view could be taken but it must not be lost sight of that one accused had accompanied the other accused and played a vital role by extending full facilitation and connivance---Supreme Court, in view of acquittal of three co-accused, converted death sentence awarded to accused to that of life imprisonment---Appeal was dismissed.

Muhammad Akbar v. Muhammad Khan and others PLD 1988 SC 274; Shehruddin v. Allah Rakhia 1989 SCMR 1461; Din Muhammad v. Crown 1969 SCMR 777; Shoukat Ali v. The State PLD 2007 SC 93 and Shahzad v. State 2002 SCMR 1009 rel.

Ibad-ur-Rehman Lodhi, Advocate Supreme Court for Appellants.

Zulfiqar Abbas Naqvi, Advocate Supreme Court for the Complainant.

M. Siddique Khan Baloch, D.P.-G. for the State.

Date of hearing: 23rd April, 2010.

SCMR 2011 SUPREME COURT 499 #

2011 SCMR 499

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Ch. Ijaz Ahmed and Mahmood Akhtar Shahid Siddiqui, JJ

MUHAMMAD ANWAR and another---Appellants

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division and others---Respondents

Civil Appeals Nos. 2243 of 2008 and 273 of 2009, decided on 15th June, 2009.

(On appeal from the judgment/order dated 6-10-2008 passed by Islamabad High Court, Islamabad, in I.C.A. No. 50 of 2008).

(a) Constitution of Pakistan---

----Art. 185(3)---Leave to appeal was granted by Supreme Court to consider the contention that petitioners approached Wafaqi Mohtasib who did not redress their grievance whereafter, representation against the order was made which too was dismissed and matter had not been considered by Division Bench of High Court in its true perspective.

(b) Competitive Examination Rules, 1977---

----R. 15---Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (P.O. 1 of 1983), Art. 32---Constitution of Pakistan, Art. 199---Civil Procedure Code (V of 1908), S. 11---Constitutional petition---Res judicata, principle of---Applicability---Different reliefs---Judgment per incuriam---Appellants were successful in competitive examination but were dissatisfied with the group allocated to them---Constitutional petition and intra-court appeal were concurrently dismissed by High Court on the ground of being barred under principle of res judicata---Validity---Causes of action in both Constitutional petitions were entirely different, therefore, High Court erred in law to dismiss petition on the principle of res judicata---High Court upheld the order of Judge in Chambers of High Court without adverting to prayer clauses of constitutional petitions---Judgment passed by Division Bench of High Court was judgment per incuriam as evident from prayer clause of constitutional petitions---Appellants challenged vires of the order of Wafaqi Mohtasib in second round of litigation which was passed on their complaint and also order of President which was passed on their representation, whereas in earlier round of litigation appellants had challenged vires of recommendations of Public Service Commission---Counsel of parties did not bring into notice of. Division Bench of High Court the controversy arising in two rounds of litigation---Judgment passed by Division Bench of High Court was not in consonance with law laid down by Supreme Court in various judgments---Supreme Court set aside the judgment passed by Division Bench of High Court and remanded the matter to High Court for decision of intro court appeal afresh---Appeal was allowed.

Mollah Ejahar Ali's case PLD 1970 SC 173; Gouranga Mohan Sikdar's case PLD 1970 SC 158 and Messrs Airport Support Services' case 1998 SCMR 2268 rel.

Malik Muhammad Qayyum, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellants (in. C.A. No. 2243 of 2008).

Dr. Muhammad Akmal Saleemi, Advocate Supreme Court for Appellants (in C.A. No. 273 of 2009).

Shah Khawar, D.A.-G. and M.S. Khattak, Advocate-on-Record for Respondents (in both cases).

Date of hearing: 15th June, 2009.

SCMR 2011 SUPREME COURT 505 #

2011 SCMR 505

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Sair Ali, Ghulam Rabbani and Khalil-ur Rehman Ramday, JJ

ACTION REGARDING VIOLATION OF PUBLIC PROCUREMENT RULES', 2004: In re

Suo Motu Case No. 18 of 2010, decided on 25th January, 2011.

Federal Investigation Agency Act 1974 (VIII of 1975)---

----S.4---Constitution of Pakistan, Art. 184 (3)---Suo motu jurisdiction of Supreme Court---Investigation---Arrest of accused---Principle---Director Federal Investigation Agency (FIA) stated that 4-5 days before registration of case and after the order had already been passed by Supreme Court, accused in question was present with Director-General FIA---Effect---Director General FIA was equally responsible for not causing arrest of the accused and instead of allowing his Director to make progress in the case, he was providing shelter to accused persons---Supreme Court directed Investigating officer of the case who was Additional Director FIA, to take all necessary steps for causing arrest of accused in question---Supreme Court further directed the Investigating Officer that if on further probe he would come to the conclusion that the accused, was being given shelter by Director-General, FIA, then he should proceed against the Director General too in accordance with law, as no one was above the law.

Moulvi Anwarul Haq, Attorney-General for Pakistan on Court Notice.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Tariq Iqbal Puri, CE TDAP, Acting Chairman, NICL for NICL.

Zafar Mehmood, Secretary for M/o Commerce.

Qamar-uz-Zaman Ch. Secretary' for M/o Interior.

Zafar Iqbal Qureshi, Additional Director, M. Azam Khan, Director (Law), Moazzam Jah, Director, Karachi, Basharat Shehzad, Dy. Dir/IO and Muhammad Ahmad, Assitant Dir/IO for FIA.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Athar Naqvi.

Ms. Romaisa Ahmad for Casa Bella.

Nemo for Naveed Zaidi. Nemo for Hur Riahi.

Muhammad Akbar Tarar, Acting PG and Fauzi Zafar, DPGA for NAB.

SCMR 2011 SUPREME COURT 508 #

2011 SCMR 508

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ghulam Rabbani, JJ

Choudhry MUHAMMAD ADNAN---Petitioner

Versus

Mst. ERUM and others---Respondents

Criminal Petition No. 5-K of 2010, decided on 24th March, 2010.

(On appeal from the judgment dated 24-12-2009 in Cr. R.A. No.158 of 2009 and Cr.M.A. No. 305 of 2009 passed by the High Court of Sindh, Karachi).

(a) Criminal Procedure Code (V of 1898)---

----Ss. 439, 265-K, 423, 426, 427 & 428---Revisional jurisdiction of High Court---Scope---Provision of S. 265-K, Cr.P.C. is a remedial provision and does not create a bar in exercise of powers of High Court acting as revisional court under S. 439, Cr.P.C., which leaves at discretion of Court to exercise any power conferred on a court of appeal by Ss. 423, 426, 427 and 428, Cr.P.C., in case of any proceedings the record of which has been called by itself or which otherwise comes to its knowledge.

(b) Criminal Procedure Code (V of 1898)---

----Ss. 169 & 173---Police report---Magistrate, jurisdiction of---Magistrate competent to take cognizance of offence can pass order on the report of police.

Soofi Abdul Qadir v. The State and others 2000 PCr.LJ 520 rel.

----Ss.169, 173, 203 & 561-A---Constitution of Pakistan, Art.185(3)---Police investigation---Deficient evidence---Private complaint, dismissal of---Inherent powers of High Court---Case registered under F.I.R., was disposed of by Magistrate under "C" class as no sufficient evidence was available---Against the order of Magistrate, complainant filed application under S. 561-A, Cr.P.C. and in the meanwhile, complainant also filed private complaint in which accused was summoned by Magistrate---High Court in exercise of revisional jurisdiction dismissed private complaint filed by complainant---Validity---Complainant himself chose such course for remedy by filing application under S. 561-A; Cr.P.C., challenging order of Magistrate disposing of the case under "C" class---Nothing was available on record before Supreme Court that direction of High Court was challenged by accused who could be the party actually aggrieved--Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Muhammad Ilyas Khan, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner.

Zafar Ahmed Khan, Additional P.G. Sindh for the State.

Nemo for other Respondents.

Date of hearing: 24th March, 2010.

SCMR 2011 SUPREME COURT 513 #

2011 SCMR 513

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.f., Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

Haji MUHAMMAD ILAHI and others---Appellants

Versus

MUHAMMAD ALTAF alias TEDI and others---Respondents

Criminal Appeals Nos. 379 and 380 of 2001 along with Civil Petition No. 201 of 2006, decided on 28th May, 2009.

(On appeal from the judgments dated 30-5-2001 and order dated 30-1-2006 passed by the Lahore High Court, Lahore, in Criminal Appeals Nos. 15, 86 and Criminal Revision No. 161 of 1991 and in W.P. No. 18675 of 2005, respectively).

(a) Penal Code (XLV of 1860)---

----Ss. 302/307/34---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether High Court was legally justified in substituting sentence of death by life imprisonment in view of broad daylight gruesome murder of six persons and attempt to murder of as many as seven persons at the hands of accused who were armed with deadly and lethal weapons.

(b) Penal Code (XLV of 1860)---

----Ss. 302/307/34---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider whether principles of law settled by Supreme Court for appreciation of evidence and safe dispensation of justice in criminal cases were rightly followed by courts below.

----S. 302---Interested and inimical witnesses---Principle---Evidence of interested and inimical prosecution witnesses has to be taken with caution and unless it is corroborated by independent circumstances, such evidence cannot be credited with truth.

Niaz's case PLD 1960 SC 387 and Misry Khan's case PLD 1977 SC 462 rel.

(d) Constitution of Pakistan---

----Art. 185(3)---Criminal trial---interference by Supreme Court---Concurrent findings of guilt by courts below---Principles---Supreme Court normally does not interfere with concurrent findings as to guilt of accused---When findings of courts below have been arrived at by disregarding any provision of law or accepted principles of appreciation of evidence or are based on inadmissible evidence or misreading of evidence then concurrent conclusions lose their sanctity.

Doso alias Dost Muhammad's case 1974 SCMR 430 rel.

(e) Penal Code (XLV of 1860)---

----Ss. 302/307/34---Reappraisal of evidence---Concurrent findings of guilt by courts below---Multiple murders---Accused faced trial for committing murder of six persons---Death sentence awarded under S. 302, P.P.C. by Trial Court was maintained by High Court---Validity---Supreme Court normally did not interfere in concurrent findings by courts below regarding guilt of accused while exercising powers under Art. 185(3) of the Constitution unless and until findings were perverse and conclusion drawn was consequence of misreading or non-consideration of important piece of evidence by courts below---Accused failed to point out any piece of evidence which was misread by courts below---Prosecution proved the case against accused beyond any shadow of doubt coupled with the fact that statements of prosecution witnesses were fair and trustworthy---Supreme Court did not find any infirmity or illegality in judgment awarding death sentence to accused---Supreme Court declined to interfere in concurrent conclusions arrived at by the courts below with regard to guilt of accused---Appeal was dismissed.

Syed Saeed Muhammad Shah's case 1993 SCMR 550; Muhammad Altaf's case 2002 SCMR 189; Iftikhar Ahmad's case 2005 SCMR 272 and Kashmir Edible Oils Limited's case 2006 SCMR 109 ref.

Abdul Khaliq's case 1996 SCMR 1553; Chikkarange Gowda's case PLD 1957 SC (Ind.) 133; Pandurag's case PLD 1956 SC (Ind.) 176; Pervez Akhtar's case 1985 SCMR 1422; Nur Muhammad's case 1969 SCMR 724; Hamayun's case 1986 SCMR 1987; Ibrahim's case 1989 SCMR 1521; Muhammad Khalid's case 1986 SCMR 1956 and Ghulam Hussain's case 1984 SCMR 1540 rel.

(f) Penal Code (XLV of 1860)---

----Ss. 302/307/34---Reappraisal of evidence---Sentence, enhancement of---Principle---Sentence of death awarded to accused by Trial Court was modified into imprisonment for life by High Court-Complainant sought enhancing of sentence---Validity---Case of enhancement or reversal of sentence where it depended upon finding of fact, such fact would not be reversed---In case of enhancement to death penalty unless amongst others there was either misreading or non-reading of evidence or any substantial point had been misread which had caused miscarriage of justice, ordinarily there was no interference---One test to determine whether there had been miscarriage of justice would be to answer a further question whether the view taken by lower court on question of reduction of sentences was' impossible---Reason given by High Court in extending benefit for modifying sentences were not irrelevant and extraneous to the record---Supreme Court observed that power to enhance sentences be sparingly exercised by Supreme Court and sentences should be enhanced only in cases where failure to enhance the sentence would lead to a serious miscarriage of justice---Mere fact that if Supreme Court would have tried the case, might have imposed the capital sentence was not sufficient reason for enhancement or conviction---Supreme Court declined to interfere with the conviction awarded to accused---Appeal was dismissed.

Abdul Malik's case PLD 2006 SC 365 and Gheba's case PLD 1949 Lah. 453 rel.

(g) Constitution of Pakistan---

---Art. 185(3)---Subsequent events---Scope---Supreme Court can look into subsequent events.

(h) Constitution of Pakistan---

----Art. 185(3)---Jurisdiction of Supreme Court---Scope---Jurisdiction of Supreme Court under Art. 185(3) of the Constitution is discretionary in character/nature.

Noora's case PLD 1973 SC 469 rel.

Afrasiab Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants (in Cr. A. 379 of 2001 and C.P. 201 of 2006).

Sardar Khurram Latif Khan Khosa, Advocate Supreme Court for Appellants (in Cr. A. 380 of 2001).

Aslam Sindhu, A.P.-G. for the State.

Date of hearing: 28th May, 2009.

SCMR 2011 SUPREME COURT 523 #

2011 SCMR 523

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

MUHAMMAD NAWAZ---Appellant

Versus

CIVIL AVIATION AUTHORITY and others--Respondents

Civil Appeal No. 2240 of 2008, decided on 17th September, 2009.

(On appeal from the order dated 29-7-2008 of the Federal Service Tribunal passed in Appeal No. 877(K)(CE) of 2001).

Civil Aviation Authority Ordinance (XXX of 1982)---

---Ss. 3, 7, 26 & 27---Service Tribunals Act (LXX of 1973), S. 4---Appeal to Service Tribunal---Appointment of respondent's employee sought to be declared against Service Regulations framed by Board of Civil Aviation Authority---Dismissal of appeal by Tribunal on ground that such Regulations were non-statutory---Validity---Supreme Court upheld such decision of Service Tribunal in circumstances.

Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681 ref.

Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806; Chairman, WAPDA and 2 others v. Syed Jamil Ahmed 1993 SCMR 346; National Bank of Pakistan v. Manzoor-ul-Hassan 1989 SCMR 842 and Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170 rel.

Shahid Anwar Bajwa, Advocate Supreme Court for Appellant.

Aain-ud-Din Khan, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Respondent No. 1.

Umar Hayat Khan, D.A.-G. for Respondent No. 2.

Nemo for Respondents No. 3 and 4.

Date of hearing: 17th September, 2009.

SCMR 2011 SUPREME COURT 527 #

2011 SCMR 527

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmed and Cit. Ijaz Ahmed, JJ

NAZIR AHMAD---Petitioner

Versus

MUHAMMAD IQBAL and another---Respondents

Criminal Petition No. 212 of 2009, decided on 25th May; 2009.

(Against the judgment dated 3-4-2009 passed by the Lahore High Court Multan Bench, Multan, in Criminal Appeal No. 478 of 2004).

(a) Penal Code (XLV of 1860)--

----Ss. 302(6)/149, 324/149, 337-A(i), 337-F(i), 337-L(2) & 148---Constitution of Pakistan, Art. 185(3)---Appeal against acquittal---Occurrence had taken place at midnight---Names of accused were not given in the F.I.R.---Complainant admittedly did not identify the accused during the incident due to their muffled faces and he had only observed their features---High Court had disbelieved ocular testimony for cogent reasons---Identification of accused in identification parade by the eye-witnesses without describing their role in the occurrence was of no value---Identification parade having been conducted after 24 days of the arrest of accused, possibility of the witnesses having seen them could not be excluded---Identification of accused by their build and stature was neither possible, nor the same was safe in electric bulb light at mid night---Identification parade held jointly of all the accused was sufficient for setting aside the conviction of accused, which was not even held according to the prescribed rules---Injuries on the person of prosecution witness could only indicate his presence at the spot, but were not affirmative proof of his credibility and truth---Impugned judgment did not suffer from any illegibility or infirmity---Leave to appeal was declined to complainant in circumstances.

Ghulam Sikandar's case PLD 1985 SC 11; Muhammad Iqbal's case 1994 SCMR 1928; Muhammad Rafiqu's case 2008 SCMR 715; Farhat Azeem's case 2008 SCMR 1285; Ghulam Rasul's case 1988 SCMR 557; Mahmood Ahmed's case 1995 SCMR 127; Muhammad Pervez's case 2007 SCMR 670; Khadim Hussain's case 1985 SCMR 721; Lal Singh's case 51 ILR Lah. 396; Machia's case PLD 1975 SC 695; Lal Pasand's case PLD 1981 SC 142; Asghar Ali's case 1992 SCMR 2088; Sohail Abbas's case PLD 2001 SC 546; Bashir and others v. The State 1995 SCMR 276; Maula Dad's case AIR 1925 Lah. 426; Imran Ashraf's case 2001 SCMR 424; Said Ahmed's case 1981 SCMR 795 and Muhammad Pervez's case 2007 SCMR 670 ref.

(b) Identification---

----Identification of accused in court after a considerable delay of the incident cannot satisfy the requirement of law for proving his identity.

Asghar Ali's case 1992 SCMR 2088 and Sohail Abbas's case PLD 2001 SC 546 ref.

----S. 302(b)---Injured witness---Credibility---Injuries of a prosecution witness only indicate his presence at the spot, but are not affirmative proof of his credibility and truth.

Said Ahmed case 1981 SCMR 795 and Muhammad Pervez case 2007 SCMR 670 ref.

Razzaq A. Mirza, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

SCMR 2011 SUPREME COURT 534 #

2011 SCMR 534

[Supreme Court of Pakistan]

Present: Muhammad Qaim Jan Khan, Zia Perwez and Mian Hamid Farooq, JJ

MUHAMMAD IQBAL---Appellant

Versus

DISTRICT POLICE OFFICER, SAHIWAL and another---Respondents

Civil Appeal No. 1259 of 2006, decided on 16th June, 2009.

(On appeal from the Judgment dated 9-3-2005 of the Punjab Service Tribunal, Lahore passed in Appeal No. 2640 of 2006).

(a) Civil service---

----Disciplinary proceedings---Scope---Inquiry would not be necessitated in a case where all facts were admitted and available on record.

(b) Civil service---

----Disciplinary proceedings---Acquittal in criminal case---Effect---Such acquittal would not be an embargo against disciplinary proceedings.

The Deputy Inspector-General of Police, Lahore Range v. Anisur Rehman Khan 1983 SCMR 160; Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1; Alamgir v. Divisional Forest Officer, Multan and others 1993 SCMR 603; Rashid Mehmood v. Additional Inspector-General of Police 2002 SCMR 57; Arif Ghafoor v. Managing Director, HMC, Taxila and others PLD 2002 SC 13 and Government of N.-W.F.P. through Secretary, Finance, Excise and Taxation Department, Peshawar and 2 others v. Aurangzeb 2003 SCMR 338 ref.

Saiful Haq Ziay, Advocate Supreme Court for Appellant.

Ms. Afshan Ghazanfar, A.A.-G., Punjab for Respondents.

Date of hearing: 16th June, 2008.

SCMR 2011 SUPREME COURT 537 #

2011 SCMR 537

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Nasir-ul-Mulk and Ch. Ijaz Ahmed, JJ

SHAFQAT MEHMOOD and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 264 of 2008, decided on 27th October, 2009.

(On appeal from the judgment dated 11-12-2006 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi, in Criminal Appeal No. 550 of 2003, M.R. No. 8-T of 2004).

(a) Penal Code (XLV of 1860)---

----Ss. 396 & 394---Anti-Terrorism Act (XXVII of 1997), Ss. 7(h) & 21-L--Constitution of Pakistan, Art. 185(3)---Dacoity with murder---Leave to appeal was granted to accused in the case involving death sentence, for reappraisal of evidence in the interest of safe administration of criminal justice.

(b) Penal Code (XLV of 1860)---

----Ss. 396 & 394---Anti-Terrorism Act (XXVII of 1997), Ss. 7(h) & 21-L--Dacoity with murder---Appraisal of evidence---Identification parade was not held according to the Rules---Prosecution witnesses had already seen the accused---Identification parade was not held separately in respect of each accused, but was held jointly---Witnesses had not described the role of each accused played by him in the occurrence, while identifying him, which was an inherent defect making the identification parade of no value and unreliable---Delay of seven days in holding the identification parade after the arrest of accused had made the same doubtful---Identification of accused in court by the witnesses, in circumstances, was valueless---Statements of eye-witnesses were not consistent and the same neither inspired confidence nor were trustworthy---Medical evidence had not supported the contents of the F.LR.---Courts below had given concurrent finding of guilt against the accused in a cursory manner without application of mind---Accused were acquitted in circumstances.

----Art. 22---Identification parade---Evidentiary value---Picking out of accused in identification parade is not a substantive piece of evidence, but 'is merely of corroborative nature.

Sahibzada Ahmed Raza Khan Qasuri, Senior Advocate Supreme Court for Appellants.

Syed Ali Imran Shan, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 27th October, 2009.

SCMR 2011 SUPREME COURT 546 #

2011 SCMR 546

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Tariq Parvez Khan, JJ

SANOBAR KHAN---Appellant

Versus

GOVERNMENT OF N.-W.F.P. through the Chief Secretary, and another---Respondents

Civil Appeal No. 50-P of 2009, decided on 29th December, 2010.

(On appeal from the judgment of the N.-W.F.P. (now K.P.K.) Service Tribunal, Peshawar, dated 22-1-2007 passed in Service Appeal No. 813 of 2005).

North-West Frontier Province Service Tribunals Act (I of 1974)---

----S. 4(b)(ii)---Appeal to Service Tribunal against penalty of censure---Dismissal of appeal by Tribunal for being non-maintainable in view of S. 4(b)(ii) of North-West Frontier Province Service Tribunals Act, 1974---Validity---Bar contained in S. 4(b)(ii) of Act, 1974 would not extend to other matters arising out of disciplinary departmental action against civil servant---Tribunal had no' jurisdiction to alter or modify quantum of sentence other than those mentioned in S. 4(b)(ii) of North-West Frontier Province Service Tribunals Act, 1974, but could examine guilt or otherwise of civil servant and other ancillary matters arising out of departmental inquiry including competency of authority to initiate action or any procedural flaw in inquiry ' proceedings---Such appeal was competent---Service Tribunal must have examined merits of case and determined as to whether findings of guilt of civil servant were sustainable---Supreme Court set aside impugned judgment and remanded case to Service Tribunal for its decision on merits.

Government of Balochistan v. Shabir Ahmed 1990 SCMR 1233 fol.

Abdul Majeed v. Government of Pakistan 2006 SCMR 1415 ref.

Atiq-ur-Rehman Qazi, Advocate Supreme Court and Muhammad Zahoor Qureshi, Advocate-on-Record for Appellant.

Naveed Akhtar, Additional A.G.K.P.K. for Respondents.

Date of hearing: 29th December, 2010.

SCMR 2011 SUPREME COURT 549 #

2011 SCMR 549

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Asif Saeed Khan Khosa, JJ

NASRULLAH and others---Petitioners

Versus

THE STATE---Respondent

Jail Petition No. 652 of 2010, decided on 10th January, 2011.

(On appeal from the judgment dated 30-11-2010 of the Lahore High Court, Lahore passed in Criminal Appeal No. 897 of 2010).

Illegal Dispossession Act (XI of 2005)---

---S.3 (2)---Constitution of Pakistan, Art. 185 (3)-Illegal dispossession---Right of appeal---Accused were convicted and sentenced by Trial Court under S. 3(2) of Illegal Dispossession 'Act, 2005---Leave to appeal was granted by Supreme Court to consider; whether in absence of any provision for appeal or revision petition in Illegal Dispossession Act, 2005, appeal of accused and revision of complainant were competent before High Court; whether complainant's complaint under Illegal Dispossession Act, 2005, was competent when matter pertaining to ownership and possession of relevant piece of land was already sub judice before civil court as well as before Evacuee Trust Property Board; whether in absence of any concrete proof available in that regard, accused could be treated as land grabbers/land mafia/ Qabza group for the purpose of Illegal Dispossession Act, 2005; whether courts below had correctly appreciated and followed law declared by Full Bench of Lahore High Court which was affirmed by Supreme Court; whether one-time ploughing of a piece of land in absence of continued physical occupation thereof amounted to dispossession for the purposes of Illegal Dispossession Act, 2005; whether or not failure on the part of complainant to produce two prosecution witnesses before Trial Court had weakened her case because according to complaint itself', it was one out of said two prosecution witnesses who informed complainant about incident in issue; and whether complainant had succeeded in proving her case against accused beyond reasonable doubt or not.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 and Bashir Ahmad v. Additional Sessions Judge Faisalabad PLD 2010 SC 661 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioners.

Ch. M. Zubair Farooq, Additional Prosecutor-General, Punjab for the State.

SCMR 2011 SUPREME COURT 551 #

2011 SCMR 551

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Jawwad S. Khawaja, JJ

Malik SHAHID MEHMOOD---Petitioner

Versus

Malik AFZAL MEHMOOD and others---Respondents

Civil Petition No. 2225 of 2009, decided on 14th September, 2010.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, dated 8-10-2009 passed in W.P. No. 2735 of 2009).

(a) Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S. 12(2) & O. XXIII, R.1(3)---Suit for. declaration---Gift deed in favour of elder son executed by deceased father---Withdrawal of first suit filed by younger son and daughter challenging such gift---Withdrawal of second suit filed by younger son challenging such gift---Third suit by elder son against mother alleging to have denied his title to gifted property---Passing of consent decree in third suit in favour of elder son on basis of conceding statement of mother---Application by younger son under S. 12(2), C.P.C., for setting aside such consent decree--Validity---Younger son after having withdrawn first and second suits unconditionally became debarred under O. XXIII, R. 1(3), C. P. C., from filing another suit to question validity of gift---Object of younger son in moving such application was to re-agitate issue which already stood closed on account of his withdrawing earlier suits---Younger son could not be allowed to do indirectly what law barred him from doing directly---Application under S. 12(2), C.P.C., being a substitute for a suit, thus, limitations imposed by law on filing of suit would be relevant for such application---Plea of elder son that in case such application was accepted and consent decree was set aside, then he would withdraw suit, then in such eventuality, younger son would be left without remedy to question gift in view of dismissal of his previous suits as withdrawn---Such application was dismissed in circumstances.

(b) Administration of justice---

----Nobody could be allowed to do indirectly what law barred him from doing directly.

----S. 12(2)---Application under S. 12(2), C.P.C.---Limitations imposed by law on filing of suit would apply to such application for same being a substitute for a suit.

Agha Muhammad Ali Khan, Advocate Supreme Court for Petitioner.

Gulzarin Kiani, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

Date of hearing: 14th September, 2010.

SCMR 2011 SUPREME COURT 554 #

2011 SCMR 554

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

TARIQ ALI BAQAR---Appellant

Versus

NEW GOODWILL COMPUTERS and others---Respondents

Civil Appeal No. 2-K of 2010, decided on 31st January, 2011.

(Against order dated 25-8-2009 of High Court of Sindh, Karachi, passed in C.P. No. S-331 of 2008).

Sindh Rented Premises Ordinance (XVII of 1979)---

---S. 8---Fair rent, fixation of---Contract between parties---Rent Controller---Jurisdiction---Property in question was let out to tenant in year, 1991, and landlord sought fixing of fair rent in year, 2003---Validity---To determine fair rent, on application filed by landlord or tenant, was the exclusive jurisdiction of Rent Controller and any agreement between the parties not to seek determination of fair rent could not 'bar the jurisdiction of Rent Controller, if that had not been already done---Court would not permit one of the contracting parties to take advantage of unusual or onerously terms consideration, as it would deprive the other party from his legitimate rights---Discretion exercised by Rent Controller and Lower Appellate Court while increasing 10% rent after about 12 years was not unjust to call for interference in exercise of constitutional jurisdiction of High Court---High Court in exercise of constitutional jurisdiction, without giving any cogent reason set aside the orders passed by Rent Controller and affirmed by Lower Appellate Court, by holding that landlord had surrendered his right of fixation of fair rent against the consideration---Supreme Court set aside the judgment passed by High Court and confirmed the orders passed by Rent Controller and confirmed by Lower Appellate Court---Appeal was allowed.

Muhammad Yousuf v. Abdullah PLD 1980 SC 298; Atta Muhammad v. Muhammad Abdullah PLd 1971 Lah. 210 and E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536 ref.

Iftikhar Javed Qazi, Advocate Supreme Court and Mazhar Ali B. Chphan, Advocate-on-Record for Appellant.

Respondent No. 1 in person.

Date of hearing: 31st January, 2011.

SCMR 2011 SUPREME COURT 558 #

2011 SCMR 558

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Sair Ali, Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

HUMAN RIGHTS CASE --- Application by Qazi Muhammad Anwar, President Supreme Court Bar Association, Islamabad: In re

Human Rights Case No. 24028 of 2010, decided on 31st January, 2011.

Constitution of Pakistan---

----Arts. 9 & 184(3)---Constitutional jurisdiction of Supreme Court--Investigation of criminal case---Arrest of accused---Grievance of petitioner was that though the murderers were identified but they had not been arrested---Validity---Supreme Court considering it a case of important nature in violation of Art. 9 of the Constitution, notices were issued to police authorities---Supreme Court asked Secretary Interior, Government of Pakistan to supervise investigation and ensure arrest of accused to face the trial---Secretary Interior informed Supreme Court that efforts were being made for extradition of accused from abroad to Pakistan subject to completion of formalities for which necessary steps had already been taken---Efforts made by Secretary Interior in constituting and guiding police party and also involving all other concerned quarters led to achieving the object which were commended by Supreme Court---Petition was disposed of.

Nemo for Applicant.

Qamar Zaman Chaudhry, Secretary Interior and Asif Nawaz, Additional Secretary for M/o Interior on Court Notice.

Bani Amin, D.I.-G. Operations, for Islamabad Police on Court Notice.

M. Aslam Ghuman, Advocate Supreme Court for KPK Police (on behalf of A.-G. KPK).

SCMR 2011 SUPREME COURT 563 #

2011 SCMR 563

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Nasir-ul-Mulk and Ch. Ijaz Ahmed, JJ

SABIR ALI alias FAUJI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 299 of 2007, decided on 8th October, 2009.

(On appeal from the judgment dated 2-3-2006 passed by Lahore High Court, Lahore, in Criminal Appeal No. 48-J of 2001, Murder Reference No. 161 of 2001).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted to accused by Supreme Court to reappraise the entire evidence for safe administration of justice.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Appraisal of evidence---Complainant had neither named the accused nor given his descriptive features in the F.I.R.---Evidence of identification parade was of no value due to the inherent defect that the witnesses had not described the role of accused in the occurrence while identifying him---Witnesses according to F.I.R. did not know the accused prior to the occurrence and the identification parade was not held according to law, therefore identification of accused in court by the witnesses was also of no value---Witnesses of identification had various opportunities to see the accused prior to the holding of identification parade? which even otherwise having been held six months after the occurrence and nine days after the arrest of accused, had created many doubts about his identity---Confessional statement allegedly made by accused before the Investigating Officer was not believable in the absence of any corroborating evidence and no inference in this regard could be drawn against the accused when this circumstance was not put to him in his statement recorded under S.342, Cr.P.C.---Recovery of rifle from the accused in violation of S.103, Cr.P.C. was, doubtful---Witnesses had made improvements in their statements before the Trial Court---Ocular testimony was inconsistent and the same did not inspire confidence---Accused was acquitted in circumstances.

Muhammad Hussain's case 1993 SCMR 1614; Munir Ahmed's case 1998 SCMR 752; Pasand's case PLD 1981 SC 142; Farman Hussain's case PLD 1995 SC 1; Ismail's case 1974 SCMR 175; Farman Ali's case 1997 SCMR 971; Ghulam Rasul's case 1988 SCMR 557; Mahmood Ahtned's case 1995 SCMR 127; Khadim Hussain's case 1985 SCMR 721; Sohn's case PLD 1974 Cr. Cases 208; Maula Dad's case AIR 1925 Lah. 426; Sultan's case PLD 1976 B.J. 10 and G.M. Sikdar's case PLD 1970 SC 158 ref.

----S. 302(b)-Identification parade---Evidentiary value---Failure on the part of witnesses to describe the role of accused at the time of identification parade is an inherent defect, which renders the identification parade valueless and unreliable.

Ghulam Rasul's case 1988 SCMR 551; Mahmood Ahmed's case 1995 SCMR 127 and Khadim Hussain's case 1985 SCMR 721 ref.

(d) Penal Code (XLV of 1860)---

----S. 302(b)---Identification parade---Identification test is of no value if description of accused is not given in the F.I. R.

Arshad Ali Chaudhry, Advocate Supreme Court for Appellant.

Syed Ali Imam, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 8th October, 2009.

SCMR 2011 SUPREME COURT 572 #

2011 SCMR 572

[Supreme Court of Pakistan]

Present: Javed Iqbal and Jawwad S. Khawaja, JJ

MUHAMMAD AHMAD KHAN and others---Petitioners

Versus

SECRETARY, ENVIRONMENT PROTECTION and others---Respondents

Civil Petition No. 61-L of 2010, decided on 4th November, 2010.

(On appeal from the judgment dated 12-11-2009 passed by the Punjab Service Tribunal, Lahore in Appeal No. 26 of 2008).

(a) Civil service---

----Promotion --- Factors requiring consideration stated.

Promotion cannot be claimed as a matter of right, but it does not mean that principles of seniority should be ignored and the senior most must be considered for promotion which is a legal right of an employee. There is no doubt that seniority alone is not the exclusive determining factor to be considered for promotion and factum of fitness and suitability cannot be kept aside.

There is no vested right in promotion or rule determining eligibility for promotion. Wherever there is a change of grade or post for the better, there is an element of selection involved that is promotion and it is not earned automatically, but under an order of the competent authority to be passed after the consideration of the comparative suitability and the entitlement of those incumbents.

(b) Civil service--

----Seniority cannot be claimed on basis of provisional seniority list not finalized.

Mushtaq Ahmad Mohal, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioners.

Asif Nazeer Awan, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Respondent No. 3.

Date of hearing: 4th November, 2010.

SCMR 2011 SUPREME COURT 577 #

2011 SCMR 577

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

ZARAI TARAQIATI BANK LTD.---Petitioner

Versus

HAKEEM KHAN---Respondent

Constitution Petition No. 646 of 2009, decided on 8th May, 2009.

(On appeal from the judgment dated 25-2-2009 of the Islamabad High Court, Islamabad passed in W.P. No. 798 of 2008).

Zarai Taraqiati Bank's Staff Service Regulations, 2005---

----Regln.7(b)---Agricultural Development Bank of Pakistan (Re-organization and Conversion) Ordinance (LX of 2002), S. 6---Removal. from Service (Special Powers) Ordinance (XVII of 2000), Ss.1 (4), 2(c), 3, 5, 9 & 10---Constitution of Pakistan, Art.185(3)---Order of relieving from service---Inefficiency and absence from duty, charges of--Imposition of such penalty by competent authority in terms of Regln.7(b) of Zarai Taraqiati Bank's Staff Service Regulations, 2005 without resorting to provisions of Removal from Service (Special Powers) Ordinance, 2000---Validity---Practical effect of word "relieved" from service as used in impugned order was deprivation of petitioner from source of his livelihood---Respondent-Bank was a corporate body owned, managed and controlled by Federal Government for purposes of Removal from Service (Special Powers) Ordinance, 2000 even after enforcement of Agricultural Development Bank of Pakistan (Re-organization and Conversion) Ordinance, 2002---Provisions of said Ordinance, 2000 were applicable to Bank as per its own Circular dated 31-1-2008 having revised thereby delegation of powers to its various officers under Ordinance, 2000---Competent authority had special powers under Ordinance, 2000 to proceed against petitioner being in Corporation Service---Petitioner under Ss.3 and 5 of Ordinance, 2000 was entitled to defend himself and explain his position in inquiry; and upon any action taken against him under Ordinance, 2000 had right to avail remedy of representation and file appeal before Service Tribunal---Competent authority by not adhering to provisions of Ordinance, 2000 had deprived petitioner of safeguards and remedies available to him under law---Adoption of course of passing a relieving order appeared to be a ruse to circumvent inquiry proceedings provided for by Ordinance, 2000---Court could not countenance such a colourable exercise of power---Supreme Court declared impugned order to be without lawful authority and ordered for reinstatement of petitioner into service leaving open for Bank for proceeding against him under Ordinance, 2000.

Azizullah Memon v. Province of Sindh 2007 SCMR 229 rel.

Haider Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Respondent in person.

SCMR 2011 SUPREME COURT 582 #

2011 SCMR 582

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Raja Fayyaz Ahmed, Muhammad Sair Ali, Asif Saeed Khan Khosa and Ghulam Rabbani, JJ

SUO MOTU CASE NO. 24 OF 2010

HUMAN RIGHTS CASES NOS. 57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P AND 58118-K OF 2010.

Suo Motu Case No. 24 of 2010, decided on 1st March, 2011.

Civil Servants Act (LXXI of 1973)---

----S.14---Employment after retirement---Appointments on contract basis are not allowed to be continued in terms of S. 14 of the Civil Servants Act, 1973, and the Policy, unless the conditions specified therein are satisfied.

Moulvi Anwar-ul-Haq, Attorney-General for Pakistan, Ch. Khadim Hussain Qaiser, Additional A.-G., Punjab, Syed Arshad Hussain Shah, Additional A.-G, KPK, Azam Khattak, Additional A.-G. Balochistan, Muhammad Mir Qasim Jat, Advocate Supreme Court (on behalf of A.-G., Sindh) and Raja Abdul Ghafoor, Advocate-on-Record on Court Notice.

Nemo for Members of Committee of Parliamentarians.

Senator Muhammad Azam Khan Sawati former Minister S&T in person.

Mian Khalid Habib Elahi, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for former Minister Religious Affirs.

Shaukat Hayat Durrani, Secretary for M/o Religious Affairs.

Ahmar Bilal Soofi, Advocate Supreme Court for former Secretary Religious Affairs.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Abdur Raul Ch. Secy. Khalid Akhlaq Gillani, Additional Secy. Muhammad Hafeez, J.S. Afzal Latif, J.S.'and Muhammad Arshad Khan, Dy. Secy. for Establishment Division.

Muhammad Akbar Tarar, Additional PGA and Fauzi Zafar, ADPGA for NAB.

Syed Jawed Ali Bukhari, Additional D.-G. Incharge Investigation, Hussain Asghar, Director, M. Azam Khan, Director (Law), Muhammad Niaz, S.I. Police with Rao Shakeel, former D.-G. Hajj (in custody) for FIA.

Nemo (in C.M.A. No. 218 of 2011).

Nemo for Tour Operators.

Raja Muhammad Irshad, Senior Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record, M. Ilyas Khan, Senior Advocate Supreme Court and Col. (R) Abdul Wahid Khan, SSP, ATC, Karachi for Contract Officers.

SCMR 2011 SUPREME COURT 585 #

2011 SCMR 585

[Supreme Court of Pakistan]

Present: Sayed Zahid Hussain and Mahmood Akhtar Shahid Siddiqui, JJ

MUHAMMAD RIAZ AKHTAR---Petitioner

Versus

SECRETARY TO GOVT. OF PUNJAB and others---Respondents

Constitution Petition No. 1122-L of 2009, decided on 28th August, 2009:

(On appeal from the Judgment dated 27-4-2009, passed-by the Punjab Service Tribunal, Lahore in Appeal No. 2047 of 2008).

(a) Civil service---

---Appointment of Sub-Engineer on work charge basis against leave vacancy---Withdrawal of such appointment order by Authority---Plea of petitioner that his appointment order could not be withdrawn without issuing him show-cause-notice or hearing him---Validity---Appointment of petitioner was not on regular basis through prescribed mode, for which he could not blame others as he himself had been approaching Chief Minister's Secretariat for such purpose---Record showed that petitioner had been exerting and mustering extraneous support and pressure for his appointment---Adoption of such devious means in securing employment in public service could not be countenanced---Acceptance of such plea of petitioner would mean revival of his appointment, which was void ab initio---Court could not give premium to any such illegality---Order of dismissal of petitioner's appeal passed by Service Tribunal was upheld by Supreme Court in circumstances.

Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v: Sadullah Khan 1996 SCMR 413; Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali 2006 SCMR 678 and Mian Tariq Javed v. province of Punjab through Chief Secretary, Government of Punjab, Lahore and 2 others 2008 SCMR 598 distinguished.

(b) Constitution of Pakistan---

----Arts. 185(3) & 212(3)---Petition for leave to appeal---Scope---Such petition would lie only on established principles governing grant or refusal of leave to appeal---Such jurisdiction could not be invoked for perpetuation of any illegality or injustice.

Muhammad Yasin Bhatti, Advocate Supreme Court along with Mehmoodul Islam, Advocate-on-Record for Petitioner.

Faisal Zaman Khan, Additional A.-G along with Hamayun Akhtar Sabi, Dy. Director for Respondents Nos. 1 to 3.

Date of hearing: 28th August, 2009.

SCMR 2011 SUPREME COURT 589 #

2011 SCMR 589

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

MUHAMMAD ANIS---Petitioner

Versus

MUHAMMAD YAHYA SULTAN and others---Respondents

C.P.L.A. No. 761-K of 2009, heard on 1st January, 2010.

Sindh Rented Premises Ordinance (XVII of 1979)---

----Ss. 15 & 18---Constitution of Pakistan, Art. 185(3)---Ejectment petition---Transfer of ownership of demised premises to petitioner by his grandfather through gift--Denial of petitioner's title by respondent tenant---Admission of respondent in written statement that after receiving notice under S. 18 of Sindh Rented Premises Ordinance, 1979, rent was tendered and paid to petitioner through money order---Admission of respondent in cross-examination that such notice found mention transfer of demised premises to petitioner through gift by its previous owner---Ejectment petition was accepted in circumstances.

Allied Books Corporation, v. Sultan Ahmed 2006 SCMR 152 and Javeed Khaleeq v. Muhammad Irfan 2008 SCMR 28 distinguished.

Abdul Qadir Khan, Advocate Supreme Court for Petitioner.

SCMR 2011 SUPREME COURT 592 #

2011 SCMR 592

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Jawwad S. Khawaja, J

GOVERNMENT OF SINDH through Secretary Education and Literacy Department and others---Petitioners

Versus

NIZAKAT ALI and others---Respondents

Civil Petition No. 534-K of 2010, decided on 27th December, 2010.

(On appeal from the judgment dated 13-8-2010 passed by the High Court of Sindh Circuit Bench at Hyderabad in C.P. No. D-1012 of 2010).

Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Civil service---Matter relating to terms and conditions of civil servant---Scope of jurisdiction of High Court---High Court, before entertaining such constitutional petition, may determine as to whether jurisdiction to decide such a case was barred.

Abdul Fattah Malik, Additional A.-G. Sindh along with Muhammad Ramzan Parhiyaar, EDO Education, Matiari for. Petitioners.

Nemo for Respondents.

SCMR 2011 SUPREME COURT 593 #

2011 S C M R 593

[Supreme Court of Pakistan]

Present: Zia Perwez, Sarmad Jalal Osmany and Sayed Zahid Hussain, JJ

AHMAD NAWAZ and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 839 of 2006, decided on 10th June, 2009.

(On appeal from the judgment dated 20-4-2006 passed by the Lahore High Court, Lahore in Criminal Appeal No. 336 of 2000).

(a) Penal Code (XLV of 1860)---

----Ss. 302(b)/34, 324/34 & 337-D/34---Constitution of Pakistan, Art.185(3)---Qatl-e-amd, attempt to commit qatl-a-amd and jaifah---Death sentence of accused was only sought to be reduced to imprisonment for life on the grounds that admittedly the accused had come to the house of real maternal uncle of the two deceased to ventilate their grievance regarding the two deceased having committed some insolence with the daughters of the accused and that the possibility of the accused not having launched a pre-meditated assault on the deceased party, could not be ruled out---Leave to appeal was granted to accused to examine if the said reasons could be considered mitigating circumstances to show leniency to accused justifying reduction in the quantum of punishment.

(b) Penal Code (XLV of 1860)---

---Ss. 302(b)/34, 324/34 & 337-D/34---Qatl-e-amd, attempt to commit qatl-e-amd and jaifah---Appraisal of evidence---Legality and propriety of the death sentence awarded to accused was only assailed---Occurrence more or less stood admitted-Death of the two brothers was not open to any doubt, but the accused had come out with the plea of grave provocation and self-defence---In the background of family relationship some incident appeared to have taken place on the day of occurrence, statedly regarding the insolence or humiliation of young girls related to accused, culminating in the death of two persons and injuries sustained by others including the accused---By appearing as their own witnesses and producing a defence witness to support the specific pleas of grave and sudden provocation taken by the accused in their statements under S. 342, Cr. P. C., they had substantially discharged the burden as required by Article 121 of Qanun-e-Shahadat, 1984---Defence version appeared to be plausible and credible---Case was at least one of counter version, where defence version could not outrightly be repelled or ruled out---At the most accused, father and brother of the girls, could be said to have exceeded their right of self-defence---Father had died during his imprisonment in jail and appeal to his extent had abated---Actions of men must be judged in the back-ground of the society to which they belonged, though they might not be entitled to strictly rely upon the doctrine of provocation and self-defence, still such circumstances needed to be taken into consideration while awarding sentence, particularly when under S. 302(b), P.P. C. court had the discretion and option to award life imprisonment if warranted by circumstances---Such a careful and cautious approach deserved to be adopted, where prosecution version lacked meticulous proof and the truth remained shrouded by mystery---Accused certainly deserved leniency in circumstances---Conviction of accused was maintained, but his sentence of death was substituted with imprisonment for life accordingly.

Abdul Haque v. The State PLD 1996 SC 1; Safdar Ali v. The Crown PLD 1953 FC 93; Muhammad Imran alias Imrani v. The State PLD. 2001 SC 956; Ajun Shah v. The State PLD 1967 SC 185; Muhammad Din alias Manna v. The State 1976 SCMR 185; Fazal Khan v. State PLD 1964 SC 54; Ghulam Rasul v. Ali Akbar PLD 1965 SC 363; Muhammad Ranizan v. The State PLD 1966 SC 129; Mst. Mumtaz Begum v. Ghulam Farid 2003 SCMR 647; Iftikhar-ul-Hassan v. Israr Bashir and another PLD 2007 SC 111; Ghulam Murtaza v. State 2004 SCMR 4; Faqir Ullah v. Khalil-uz-Zaman 1999 SCMR 2203; Muhammad Akram v. State 2003 SCMR 855; Abdus Salam v. State 2000 SCMR 338; Muhammad Riaz and another v. The State 2007 SCMR 1413 and Iftikhar Ahmed Khan v. Asghar Khan and another 2009 SCMR 502 ref.

----S. 302---Qatl-e-amd---Appraisal of evidence---Defence plea-Grave and sudden provocation--- Abusive language-- Mitigating circumstance---Sentence---Plea of grave and sudden provocation on account of abusive language can be treated as a mitigating circumstance in awarding sentence under Tazir, even if such plea is not available and does not get any protection in the law.

Safdar Ali v. The Crown PLD 1953 FC 93 ref.

(d) Penal Code (XLV of 1860)---

----S. 302---Sentence---Cases in which death sentence must be awarded and lesser penalty of life imprisonment should not be imposed---Where the court from the facts and circumstances of the case finds the manner and method of incident to be in the nature of brutality, horrific, heinous, shocking, involving terrorist nature, creating panic to the society as a whole or in part, callous and cold-blooded, then in such cases (list not exhaustive), penalty of death must not be withheld---Grave inhuman attitude, acts, manners, method and the criminality of action are the constituents, elements and the instances, where punishment of death must be awarded---Court is expected to proceed very carefully and cautiously in the exercise of such discretion and not to ignore the circumstances and cause of occurrence.

Abdul Haque v. The State PLD 1996 SC 1; Safdar Ali v. The Crown PLD 1953 FC 93; Muhammad Imran alias Imrani v. The State PLD 2001 SC 956; Ajun Shah v. The State PLD 1967 SC 185; Muhammad Din alias Manna v. The State 1976 SCMR 185; Fazal Khan v. State PLD 1964 SC 54; Ghulam Rasul v. Ali Akbar PLD 1965 SC 363; Muhammad Ramzan v. The State PLD 1966 SC 129; Mst. Mumtaz Begum v. Ghulam Farid 2003 SCMR 647; Iftikhar-ul-Hassan v. Israr Bashir and another PLD 2007 SC 111; Ghulam Murtaza v. State 2004 SCMR 4; Faqir Ullah v. Khalil-uz-Zaman 1999 SCMR 2203; Muhammad Akram v. State 2003 SCMR 855; Abdus Salam v. State 2000 SCMR 338; Muhammad Riaz and another v. The State 2007 SCMR 1413 and Iftikhar Ahmed Khan v. Asghar Khan and another 2009 SCMR 502 ref.

Saif-ul-Malook, Advocate Supreme Court for Appellant.

Ghulam Farid Senotra, Advocate Supreme Court for the Complainant.

Aslam Sindhu, Additional P.-G. Punjab for the State.

Date of hearing: 28th May, 2009.

SCMR 2011 SUPREME COURT 606 #

2011 SCMR 606

[Supreme Court of Pakistan]

Present: Anwer Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

ABDUL HAMEED---Petitioner

Versus

ZAHID HUSSAIN alias PAPU CHAMAN PATIWALA and others---Respondents

Criminal Petition for Leave to Appeal No. 50-K of 2010, decided on 16th June, 2010.

(Against the order dated 22-4-2010 passed by learned Single .Judge of the High Court of Sindh in Criminal Bail Application No. 95 of 2010).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Constitution of Pakistan, Art.185(3)---Bail, grant of---Further inquiry---High Court had granted bail to respondents on the ground that there were counter cases between the parties; and it was yet to be determined as to who was the aggressor; therefore their case fell within the ambit of S.497(2), Cr.P.C. requiring further inquiry---Place of incident of both the cases had also been shown a footpath, corner of street---From that position it was prima facie clear that incidents of both the F.I.Rs. took place on the same date, time and place---Such point, however, could be properly thrashed out at the time of trial, but presently no exception could be taken with regard to the said position---No tentative findings could be given as to which party was the aggressor---High Court, in circumstances, was justified in granting bail to the respondents---Impugned order did not suffer from any illegality or irregularity and did not require any interference---Petition was dismissed.

Mehmood A. Qureshi, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

SCMR 2011 SUPREME COURT 608 #

2011 S C M R 608

[Supreme Court of Pakistan]

Present. Muhammad Farrukh Mahmud and Sayed Zahid Hussain, JJ

FARHAD ALI---Petitioner

Versus

DIRECTOR-GENERAL, PAKISTAN POST OFFICE and others---Respondents

Civil Petition No.659 of 2008, decided on 17th June, 2009.

(On appeal from the judgment, dated 8-4-2008 of the Federal Service Tribunal, Islamabad passed in Appeal No.3(P)(C.S.) of 2005).

Service Tribunals Act (LXX of 1973)---

----S. 5---Constitution of Pakistan, Art. 212(3)---Modification of penalty--Jurisdiction of Service Tribunal and Supreme Court---Scope---Civil servant was dismissed from service for misappropriating public money entrusted to him, which order was maintained by Service Tribunal---Contention of civil servant was that his penalty be converted into some lesser penalty---Validity---Service Tribunal while dealing with appeal of any civil servant, in exercise of powers under S.5 of Service Tribunals Act, 1973, had the power to vary and modify the order of departmental authority---Supreme Court while sitting in appeal over the judgment of Service Tribunal could also exercise such power to meet the ends of justice dependent upon the course of facts and circumstances of each case---Petitioner was holding post where his duty included dealing with money entrusted to him by public and misappropriation of such public money even though for a short period could not be taken lightly nor ignored---Civil servant was liable to face consequences of his conduct and malfeasance---Supreme Court converted penalty of dismissal from service into compulsory retirement---Appeal was allowed.

Assistant Director (Admn.) National Savings Centre and others v. Muhammad Anwar 1990 SCMR 1214; Akhtar Ali v. Director, Federal Government C.P.No.704 of 2008; Abdul Hassan v. Secretary, Education (S&L) N.-W.F.P and 3 others 2008 PLC (C.S.) 77; Shamim Ahmed Kazmi v. Pakistan International Airlines Corporation and another 2005 SCMR 638; Agriculture Development Bank of Pakistan through Chairman and another v. Akif Javed 2005 SCMR 752; Auditor General of Pakistan and others v. Muhammad Ali and others 2006 SCMR 60; Javed Akhtar and others v. Chief Engineer, Highway Department and others 2006 SCMR 1018; Islamic Republic of Pakistan v. Dr. Safdar Mahmood PLD 1983 SC 100; Water and Power Development Authority, Lahore and 2 others v. Muhammad Yousaf, Test Inspector PLD 1996 SC 840; Mian Shafiuddin, Deputy Director and 4 others v. Surat Khan Marti, Director Regional Information Office, Islamabad and 41 others 1991 SCMR 2216; Aijaz Nabi Abbasi v. Water and Power Development Authority and another 1992 SCMR 774; Inspector-General (Prisons) N.-W.F.P Peshawar and another v. Syed Jaffar Shah, Ex-Assistant Superintendent Jail and others 2006 SCMR 815; Abdul Sattar and another v. Director Food, Punjab and others 2007 PLC (C.S.) 319; Muhammad Ali S. Bukhari v. Federation of Pakistan through Establishment Secretary, Islamabad and 2 others 2008 PLC (C.S.) 428 and Federation of Pakistan v. Khalid Javed 2009 SCMR 720 rel.

M. Shoaib Shaheen, Advocate Supreme Court for Petitioner.

Agha Tariq Mehmood, D.A.-G. along with Ch. Muhammad Akram, Advocate-on-Record for Respondents.?

SCMR 2011 SUPREME COURT 613 #

2011 SCMR 613

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Muhammad Farrukh Mahmud and Muhammad Sair Ali, JJ

NASRULLAH KHAN and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 105 of 2005, decided on 25th May, 2009.

(On appeal against the judgment dated 17-2-2003 passed by the Lahore .High Court, Lahore in Crl. A. No. 681 of 2002, Murder Reference No. 59-T of 2002).

(a) Anti-Terrorism Act (XXVII of 1997)---

----Ss. 7(a) & 7(c)---Appraisal of evidence---Sentence, reduction in---Presence of two injured eye-witnesses at the scene of occurrence could not be denied---Presence of complainant at the spot was admitted---Promptly lodged report contained the details of the occurrence as well as the descriptions of the accused---Accused had been identified with their specific roles not only in the identification test by the prosecution witnesses, but also before the Trial Court---Ocular testimony was consistent on all material points and was corroborated by medical evidence, evidence of motive and evidence of incriminating recoveries---Twenty eight crime empties secured from the spot had tallied with the weapon recovered from the main accused---Belated defence plea of grave and sudden provocation taken by the main accused was an afterthought, which was not supported by any evidence or circumstances of the case---Convictions and sentences of main accused were upheld in circumstances---Co-accused had neither raised any "Lalkara" nor fired any shot aiming at the persons present in the premises---Crime empties collected from the spot did not Match with the weapons allegedly recovered from co-accused---Conviction of co-accused on five counts under S. 7(a) of Anti-Terrorism Act, 1997, was maintained, but their sentence of death thereunder on each count was reduced to imprisonment for life in circumstances---Conviction and sentences of co-accused under S. 7(c) of the said Act were, however, upheld and all their sentences were directed to run concurrently.

Elahi Bakhsh and others v. The State and others 2005 SCMR 810; Muhammad Naeem and another v. State 200 SCMR 284 and Mehra Mistak v. Emperor AIR 1934 Lah. 103 ref.

(b) Anti-Terrorism Act (XXVII of 1997)---

----S. 7(a)---Appreciation of evidence---Defence plea---Grave and sudden provocation---Principle---Benefit of grave and sudden provocation can only be given, if the provocation was not sought by the accused himself.

Mehra Mistak v. Emperor AIR 1934 Lah. 103 ref.

----S. 7(a)---Grave and sudden provocation---Provocation, nature. of---Provocation must be such as will upset not merely a hasty, hot-tempered and hypersensitive person, but would upset also a person of ordinary sense and calmness---Law does not take into account abnormal creatures reacting abnormally in given situations, but contemplates the acting of normal beings in given situations , and the protection that is offered by the exception is the protection of normal beings reacting normally in a given set of circumstances--Provocation sought by the accused cannot furnish any defence against the charge of murder.

Mehra Mistak v. Emperor AIR 1934 Lah. 103 ref.

Sardar Ahmed Khan, Advocate Supreme Court for Appellants.

Mian Asif Mumtaz, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 25th May, 2009.

SCMR 2011 SUPREME COURT 621 #

2011 SCMR 621

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bukhari, JJ

SULTAN AHMAD (decd) through L.Rs.---Petitioner

Versus

MUHAMMAD YOUSUF---Respondent

Civil Petition No. 226-L of 2005, decided on 22nd July, 2009.

(On appeal from the judgment dated 3-12-2004 of the Lahore High Court, Lahore, passed in C.R. No. 918 of 2002).

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Constitution of Pakistan, Art. 185(3)---Suit for declaration by an illiterate Pardanashin lady/village woman to the effect that sale-deed alleged to have been executed by her was liable to be cancelled being the result of fraud and misrepresentation---Sale-deed, in question was attested by two witnesses and the only other marginal witness was not produced; even stamp vendor and scribe had not been produced; executant lady was not related either to the defendants or the marginal witness; she was not in possession of any independent advice and that no person of her confidence was associated with the alleged transaction---Validity---Under Arts. 17 & 79, Qanun-e-Shahadat, 1984, at least two witnesses were required to prove a transaction---Only one marginal witness had been produced, who too, was not aware of the details of the transaction and had conceded that the lady was not accompanied by any person at the time when document in question was being authored by the petition-writer---Lady was an illiterate Pardanashin village woman, no person of her confidence accompanied her, heavy onus, in circumstances, lay on defendants to prove the transaction which they failed to discharge---Judgment of the High Court was well-reasoned; no misreading or non-reading of evidence had been pointed out therein; even otherwise no illegality or infirmity was found in the impugned judgment so as to warrant interference by Supreme Court---High Court having rightly accepted the revision of the lady, petition for leave to appeal against the judgment of the High Court was dismissed.

Hassan Ahmad Khan Kanwar, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 22nd July, 2009.

SCMR 2011 SUPREME COURT 624 #

2011 SCMR 624

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan and Muhammad Qaim Jan Khan, JJ

GUL ALAM---Petitioner

Versus

THE STATE through Advocate-General N.-W.F.P.; Peshawar---Respondent

Criminal Petition No. 131-P of 2007, decided on 7th April, 2009.

(On appeal from the judgment dated 24-10-2007 of the Peshawar High Court, Peshawar passed in Criminal Appeal No. 430 of 2006).

Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 4 & 5---Constitution of Pakistan, Art. 185(3)---Leave to appeal, refusal of---Destruction of case property under the orders of Sessions Court did not suffer from any illegality, as samples of narcotics had already been taken and duly exhibited at the trial---Apprehension of accused and recovery of contraband "Charas" from the by carried by him, had been satisfactorily proved by the unaminous testimony of prosecution witnesses on all material aspects of the case qua place, time of arrest and recovery---No enmity, ill will or grudge was alleged against the prosecution witnesses by the accused for his false implication---Eleven kilograms of "Charas" could not be thrust upon the accused without any serious enmity---Rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, being directory and not mandatory, could not control the substantive provisions of the Control of Narcotic Substances Act, 1997 and frustrate its purpose---Failure to follow the said rules would not render the search, seizure and arrest under the parent Act a nullity and would not make the entire case doubtful, except the consequences provided in the rules---Belated dispatch of incriminating articles for expert opinion could not be fatal in the absence of any objection regarding the same having been tampered with or manipulated---Impugned judgment did not suffer from any illegality or infirmity, legal or factual---Leave to appeal was refused to accused accordingly.

Asghar Ali v. The State 1996 SCMR 1541; Muhammad Uzair Siddiqui v. State PLD 2005 Pesh. 81; Ijaz-ud-Diu v. The State 2005 YLR (Lah.) 16; Ghulam Qadir v. The State PLD 2006 SC 61 and Tariq Mehmood v. The State through Deputy Attorney-General, Peshawar PLD 2009 SC 39 ref.

Mehmood Shah, Advocate Supreme Court and M. Zahoor Qureshi, Advocate-on-Record for Petitioner.

Ishtiaq Ibrahim, A.A.-G. for Respondent.

Date of hearing: 7th April, 2009.

SCMR 2011 SUPREME COURT 629 #

2011 S C M R 629

[Supreme Court of Pakistan]

Present: Zia Perwez, Sarmad Jalal Osmany and Sayed Zahid Hussain, JJ

SABIR ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 140 of 2007, decided on 15th June, 2009.

(On appeal from the judgment dated 20-1-2006 passed in Criminal Appeal No. 588 of 2001 and Murder Reference No. 608 of 2001 by the Lahore High Court, Multan Bench, Multan).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted to accused on his jail petition by Supreme Court to reappraise the evidence in the interest of safe administration of criminal justice.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Appraisal of evidence---Prosecution version inherently suffered from very serious infirmities and self-contradictions, as to the venue of its taking place as also the manner it has been projected---Background of quarrels and tension between the parties was admitted, issue being the development of illicit relations by the son of the deceased with the daughter of the acquitted accused and maternal niece of the present accused---Issue of family honour appeared to be the strong possibility giving rise to the loss. of four human lives---Prosecution version as sought to be projected did not correspond or coincide with the events unfolded by evidence---Accused had pleaded his self-defence in rescuing his niece, who too had lost her life in the street as a result of firing and at the most he could be said to have exceeded his right of self-defence---Reaction of accused to the situation was due to the peculiar background and incident of family honour and he certainly did not deserve extreme penalty of death---Death sentence awarded to accused was converted into imprisonment for life in circumstances while maintaining his conviction.

Abdul Majid v. Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan PLD 1964 SC 422; The State v. Manzoor Ahmad PLD 1966 SC 664; Ghulam Sikandar and another v. Mamraz Khan and another PLD 1985 SC 11; Ansar Ahmad Khan Barki v. The State 1993 SCMR 1660; State v. Farman Hussain and others PLD 1995 SC 1; Abdul Haque v. The State PLD 1996 SC 1; Safdar Ali v. the Crown PL15 1953 FC 93; Muhammad Imran alias Imrani v. The State PLD 2001 SC, 956; Muhammad Din alias Manna v. The State 1976 SCMR 185; Fazal Khan v. State PLD 1964 SC 54; Ghulam Rasul v. Ali Akbar PLD 1965 SC 363; Muhammad Ramzan v. The State PLD 1966 SC 129 and Ajun Shah v. The State PLD 1967 SC 185 ref.

----S. 342---Power to examine the accused---Duty of court---Once an accused chooses to render any explanation, it becomes the duty of the court to consider the same objectively, giving in this way full meaning to the provision of law---An outright rejection of the explanation of accused without giving due consideration, will render the provisions redundant and nugatory defeating the object and purpose of law.

(d) Penal Code (XLV of 1860)---

---S. 302(b)---Appraisal of evidence---Burden of proof---Principle---General principle in criminal jurisprudence is that prosecution is to prove the case against the accused beyond doubt and this burden does not shift from prosecution, even if accused takes up any particular plea and fails in it---Any room for benefit of doubt in the prosecution case will go to accused and not to prosecution.

Abdul Haque V. The State PLD 1996 SC 1 ref.

(e) Penal Code (XLV of 1860)---

----S. 302(6)---Appraisal of evidence---Defence plea---Benefit of doubt---Principle---Where the court after examination of the whole evidence is of the opinion that there is reasonable possibility of the defence put forward by the accused being true, then such view would react on the whole prosecution case and accused would be entitled to benefit of doubt not as a matter of grace but as a right, because prosecution has failed to prove its case beyond reasonable doubt.

Safdar Ali v. The Crown PLD 1953 FC 93 ref.

Qari Abdul Rasheed, Advocate Supreme Court for Appellant.

Mian Asif Mumtaz, D.P.-G., Punjab for the State.

Date of hearing: 4th June, 2009.

SCMR 2011 SUPREME COURT 641 #

2011 SCMR 641

[Supreme Court of Pakistan]

Present: Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bukhari, JJ

THE STATE through Advocate-General, N.-W.F.P.---Petitioner

Versus

SARFRAZ and 3 others---Respondents

Criminal Petition No. 54-P of 2008, decided on 2nd April, 2009.

(On appeal from the judgment dated 14-10-2008 of the Peshawar High Court, Peshawar passed in Criminal Appeal No. 178 of 2006).

Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(a)---Constitution of Pakistan, Art. 185(3)---Petition for leave to appeal against conversion of conviction of accused from S. 9(c) to S.9(a) of the Control of Narcotic Substances Act, 1997, by High Court---Opium weighing 80 Kgs. had allegedly been recovered from the vehicle of the accused---Out of the whole bulk samples of opium weighing 70 grams were sent to Chemical Examiner for opinion---Trial Court had sentenced the accused to imprisonment for life with fine' under S. 9(c) of the Control of Narcotic Substances Act, 1997, but in appeal High Court had altered the conviction of accused to S.9(a) of the said Act and reduced their sentence to two years' R.I. each---Validity---Recovered opium other than the one separated for samples, was not produced in the court on the ground of having been destroyed by the Magistrate under the orders of Trial Court---No evidence was brought on' record to establish that the samples secured from the -'narcotics material were the same, which had been taken from the remaining destroyed material---Prosecution had not been able to connect the separated narcotics material with the whole quantity recovered from the possession of accused---Procedure required for destruction of the remaining quantity of the narcotics material had neither been adhered to, nor the same had been proved in accordance with law--Quantity of opium claimed by the prosecution to have been actually recovered from the possession of accused, had not been proved on record---High Court, therefore, had rightly concluded that the quantity of opium weighing 70 grams as shown in the report of Chemical Examiner, was the recovered material and produced before the court---Impugned judgment did not suffer from any illegality or infirmity---Leave to appeal was declined to complainant accordingly.

Sarfraz Gul v. The State PLD 2004 SC 334 ref.

Ishtiaq Ibrahim, A.A.-G. N.-W.F.P. for the State.

Nemo for Respondents.

Date of hearing: 2nd April, 2009.

SCMR 2011 SUPREME COURT 646 #

2011 SCMR 646

[Supreme Court of Pakistan]

Present: Zia Perwez, Sarmad Jalal Osmany and Sayed Zahid Hussain, JJ

TAHIR KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 415 of 2002, decided on 23rd July, 2009.

(On appeal from the judgment dated 5-3-2002 passed in Criminal Appeal No. 426 of 2000 and Murder Reference No. 235-T of 2000 by the Lahore High Court, Lahore).

(a) Penal Code (XLV of 1860)---

---S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether High Court had passed judgment keeping in view the principles pronounced by superior courts for safe administration of justice.

(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 46---Penal Code (XLV of 1860), S. 302---Dying declaration---Scope---Mere dying declaration shrouded by mystery and fraught with so many infirmities is not enough to convict a person---Dying declaration is weaker type of evidence, which needs corroboration when fully corroborated by other reliable evidence---Facts and circumstances of each case have to be kept in view and also credibility, reliability and acceptability of such declaration by court.

Nazim Khan and 2 others v. The State 1984 SCMR 1092; Sher Bahadur and another v. The State 1972 SCMR 651; Farman Ullah v. Qadeem Khan and another 200.1 SCMR 1474; Mst. Ghulam Zohra and another v. Malik Muhammad Sadiq and another 1997 SCMR 449'; Zarif Khan v. The State PLD 1977. SC 612; Mst. Zahida Bibi v. The State PLD 2006 SC 255 and Farman Ahmad v. Muhammad Inayat and another 2007 SCMR 1825 rel.

----S. 302(b)---Qanun-e-Shahadat (10 of'1984), Arts. 46 & 129(g)---Reappraisal of evidence- -Benefit of doubt---Substituting of accused---Withholding of witness---Presumption---Complainant not appearing as witness---Non-matching of crime empties with weapon of offence---Abscondence of accused---Effect---Person initially nominated as accused in F.I.R. was substituted and trial was conducted against the person who was later on arrayed as accused---Trial Court convicted the accused under S. 302, P.P.C. for murder of three persons and sentenced him to death on three counts---Validity---Clouds over veracity of prosecution version began hovering with substitution of initially nominated persons in F.I.R. and also that complainant did not appear as witness---Complainant and two other prosecution witnesses were not produced during trial and only possible conclusion was that prosecution sensed risk of producing them that those prosecution witnesses might not support the version-Non-production of such prosecution left doubts spreading all around---Benefit of any reasonable doubt must go to accused and mere falsity of defence version was not to be taken adversely against the accused---Motive was a double edged weapon which could be used either way and by either side i.e. for real or false involvement---Motive introduced subsequently that deceased had forbidden one prosecution witness to be associated with accused was not such as would have prompted hint to kill three persons---Accused had also introduced element of ill will and enmity with Investigating Officer due to past encounter for falsely implicating him---Mere recovery of Kalashnikov, when seven empties recovered from the spot were not matched was also in the circumstances inconsequential---Abscondence itself was not sufficient for involvement of accused with offence-It was the linkage and chain of all events by credible and convincing evidence on the basis of which involvement of any person was said to be proved as conviction should rest on surer and firmer footings---Reappraisal of evidence had left many doubts in the mind of the court about involvement of accused in commission of crime for which he was convicted---High Court did not consider the matter in proper perspective and conviction as per prevailing factual and legal position could not be sustained in such circumstances---Supreme Court set aside the conviction and sentence awarded to accused and he was acquitted of the charge---4ppeal was allowed.

Muhammad Jehangir alias Badshah and another v. State 1995 SCMR 1715; Lal Khan v. The State 2006 SCMR 1846; Abdul Majid v. Superintendent and Rememberancer of Legal Affairs, Government of East Pakistan PLD 1964 SC 422; The State v. Manzoor Ahmad PLD 1966 SC 664; Ghulam Sikandar and another v. Mamraz Khan and another PLD 1985 SC 11; Ansar Ahmad Khan Barki v. The State 1993 SCMR 1660 and State v. Farman Hussain and others PLD 1995 SC ref.

M. Asghar Khan Rokhri, Advocate Supreme Court for Appellant.

Muhammad Inyatullah Cheema, Advocate Supreme Court for the Complainant.

Mian Asif Mumtaz, D.P.-G. Punjab for Respondent.

Date of hearing: 2nd June, 2009.

SCMR 2011 SUPREME COURT 659 #

2011 SCMR 659

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Muhammad Farrukh Mahmud and Sayed Zahid Hussain, JJ

MUHAMMAD RAMZAN and others---Petitioners

Versus

GHULAM QADIR---Respondent

Civil Petitions Nos. 356 to 360 of 2007, decided on 10th June, 2009.

(On appeal against the judgment dated 13-2-2007 passed by the Lahore High Court, Multan Bench, Multan in R.F.As. Nos. 232, 233, 234 of 2000 and 57, 56 of 2001).

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 1 & 2---Constitution of Pakistan, Art. 185(3)---Recovery of money---Promissory note---Conditional leave-Non-recording of evidence---Suit was decreed in favour of plaintiff on failure of defendants to comply with condition imposed by Trial Court while granting leave to defend the suit---Validity---Trial Court had considered and brought on record the pro notes and receipts executed in favour of plaintiff, so it could not be said that Trial Court did not apply its mind to the facts of case or that the suits were decreed without any evidence---It was within the discretion of Trial Court to grant leave to defend the suit subject to imposition of condition, therefore, order of Trial Court in that regard was perfectly legal and could not be challenged by defendants---Sufficient time was given to defendants to comply with direction of Trial Court vis-a-vis furnishing of surety bonds but same were not complied with for no justifiable reasons---Trial Court rightly dismissed applications of defendants seeking leave to defend---Defendants failed to point out any irregularity or infirmity in the judgments passed by courts below---Supreme Court declined to interfere in the judgments passed by the courts below in favour of plaintiff---Leave to appeal was refused.

Haji Ali Khan and Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottabad PLD 1995 SC 362 and Abdullah v. Shaukat 2001 SCMR 60 rel.

Khan Dil Muhammad Khan Alizai, Advocate Supreme Court for Petitioners (in all cases).

Nemo for Respondent (in all cases).

Date of hearing: 10th June, 2009.

SCMR 2011 SUPREME COURT 664 #

2011 SCMR 664

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Ijaz-ul-Hassan and Zia Perwez, JJ

KHALID MEHMOOD and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 304 of 2000, decided on 16th June, 2009.

(On appeal from the judgment dated 20-4-1999 of the Lahore High Court, Lahore passed in Criminal Appeal No. 628 of 1994).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---appraisal of evidence---Old enmity existed between the parties---Day time occurrence had been reported to the police with promptness---Accused had not denied or refuted the criminal litigation going on between the parties---Murder could be committed even in the absence of motive and in case of proof of murder case normal sentence was death in absence of mitigating circumstance---Ocular testimony, recovery of weapons of offence, positive report of Fire-Arms Expert, motive and medical evidence had proved the prosecution case against the accused---Convictions and sentences of accused were upheld in circumstances.

Waris Khan v. The State 2001 SCMR 387; Talib Hussain v. State 1995 SCMR 1776; State/Government of Sindh v. Sobharo 1993 SCMR 585; Mushtaq Ahmad v. Muhammad Siddiqu PLD 1975 SC 160; Manzoor Ahmad v. The State PLD 1983 SC 197; Sardar Ali v. State 1969 SCMR 542; Ahmad Nisar v. State 1977 SCMR 175; Sher Ali v. State 1980 SCMR 291; Ghulam Nazir v. State 1981 SCMR 805; Sher Daraz Khan v. State 1983 SCMR 266; Arif v. State 1984 SCMR 124; Mati-ur-Rehman v. State 1985 SCMR 975; Faqir Masih v. Mubarik Masih 1987 SCMR 320; Roheeda v. Khan Bahadur 1992 SCMR 1036; Muhammad Ishaque Khan v. State PLD 1994 SC 259; Zulfiqar v. State 1995 SCMR 1668; Intizar Hussain v. Muhammad Sarwar 1996 SCMR 872; Ghuncha Gul v. State 1971 SCMR 368 and Muhammad Nazir v. State 1985 SCMR 507 ref.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Sentence---Absence of motive---Award of death sentence in a murder case does not legally require an allegation and proof of motive by the prosecution.

----S. 302(b)---Appraisal of evidence---Accused was found innocent by different police agencies and got discharged from the court of Magistrate, which order was not challenged by the complainant---No weapon of offence had been recovered from the possession of accused---Participation of accused in the commission of crime was highly doubtful---Ocular evidence was not credible and trustworthy---Accused was acquitted in circumstances.

Ayub Masih v. The State PLD 2002 SC 1048 and The State v. Mushtaq Ahmad PLD 1973 SC 418 ref.

(d) Penal Code (XLV of 1860)---

----S. 302(b)---Appraisal of evidence---Benefit of doubt---Rule of benefit of doubt described as the golden rule, is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law.

Ayub Masih v. The State PLD 2002 SC 1048 and The State v. Mushtaq Ahmad PLD 1973 SC 418 ref.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court and Ch. M. Akram, Advocate-on-Record for Appellants.

Syed Ali Imran, D.P.-G. for the State.

Date of hearing: 16th June, 2009.

SCMR 2011 SUPREME COURT 670 #

2011 SCMR 670

[Supreme Court of Pakistan]

Present: Zia Perwez, Sarmad Jalal Osmany and Sayed Zahid Hussain, JJ

GUL MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 669 of 2006, decided on 29th May, 2009.

(On appeal from the judgment dated 19-12-2005 passed by the Lahore High Court, Lahore in Crl. A. No. 361-J of 2000).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted to accused to examine entire evidence and to consider the question whether the chains of facts were linked in a manner which would suggest no other possibility except the guilt of accused.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 40---Appraisal of evidence---Delay in lodging of F.I.R. was suitably explained by the complainant, father of the deceased child---Complainant and accused were close relatives---Accused had nourished ill will and grudge towards the complainant as he considered the complainant responsible for separation of his wife and daughters and thus thought of teaching a lesson to him---Medical evidence had supported the last seen and other circumstantial evidence---Multiple circumstances had corroborated the involvement of accused in killing the boy, who had taken him along on a bicycle, killed him thereafter and thrown into the river---In view of Article 40 of the Qanun-e-Shahadat, 1984, the lead provided by the accused and pointation of the place where the minor was killed and recovery of dead body, were all relevant informations about which only the accused had the information---Accused had taken life of an innocent child in a merciless and cruel manner and he deserved no leniency---Appeal was dismissed in circumstances.

Hakim Ali v. The State 1971 SCMR 412; Sh. Muhammad Amjad v. The State PLD 2003 SC 704 and Sher Zaman v. State and others PLJ 2006 SC 931 ref.

Arshad Ali Ch. Advocate Supreme Court for Appellant.

M. Aslam Sindhu, Additional P.-G. Punjab for the State.

Date of hearing: 29th May, 2009.

SCMR 2011 SUPREME COURT 676 #

2011 SCMR 676

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhty, C.J. Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

RAJA KHAN---Petitioner

Versus

MANAGER (OPERATION) FAISALABAD ELECTRIC SUPPLY COMPANY (WAPDA) and others---Respondents

Civil Petition No. 636 of 2009, decided on 21st May, 2009.

(Against the judgment dated 11-2-2009 passed by the Federal Service Tribunal, Islamabad, in Appeal No. 445(R) CE of 2005).

(a) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 34 & 10---Constitution of Pakistan, Art. 212(3)---Compulsory retirement from service---Dismissal of first departmental appeal for being time barred---Dismissal of second departmental appeal as not competent---Dismissal of appeal by Service Tribunal on merits as well as its being time barred---Validity---Petitioner had filed appeal before Tribunal without fulfilling mandatory requirement of S. 4 of Service Tribunals Act, 1973 in regard to limitation---Court could not compromise on limitation---Petitioner during four years of service had been punished for unauthorized absence as many as eight times---Petitioner by his subsequent conduct had accepted punishment of compulsory retirement by getting his pension claim and monthly pension regularly---Supreme Court refused to grant leave to appeal in circumstances.

Haji Ghulam Rasul's case PLD 1971 SC 376; Mst. Amina Begum's case PLD 1978 SC 220 and Nawab Syed Raunaq Ali's case PLD 1973 SC 236 rel.

(b) Constitution of Pakistan---

----Art. 212(3)---Service Tribunal, finding of---Validity---Such finding being finding of fact would not call for interference by Supreme Court.

Ch. Muhammad Azim's case 1991 SCMR 255 rel.

---Art. 212(3)---Concurrent findings of fact by Appellate Authority and Service Tribunal---Validity---Supreme Court would not interfere with such findings.

Iftikhar Ahmed Malik's case 2005 SCMR 806 rel.

(d) Service Tribunals Act (LXX of 1973)---

----S. 4---Departmental appeal being time-barred---Effect---Appeal before Service Tribunal would not be competent.

Chariman PIA and others v. Nasim Malik PLD 1990 SC 951; Muhammad Aslam v. WAPDA and others 2007 SCMR 513 and Government of Pakistan through Secretary, Establishment Division v. Bashir Ahmad Khan PLD 1985 SC 309 rel.

(e) Limitation---

---Appeal, if required to be dismissed for being time-barred, then its merits need to be discussed.

Khan Sahib Sher Muhammad Mir's case 1987 SCMR 92 rel.

(f) Constitution of Pakistan---

---Art. 212(3)---Constitutional jurisdiction under Art. 212(3) of the Constitution---Discretionary in character.

(g) Constitution of Pakistan---

---Arts. 185(3) & 212(3)---Grant of leave to , appeal by Supreme Court---Discretionary.

Ghulam Qadir Khan's case 1986 SCMR 1386 rel.

(h) Constitution of Pakistan---

----Arts. 199 & 212(3)---Void order---Constitutional jurisdiction of High Court and Supreme Court---Scope---Such jurisdiction might be refused, if same was meant to enable petitioner to circumvent provisions of law of limitation or if he was stopped by his conduct from challenging order.

Muhammad Ismail's case 1983 SCMR 168; Abdur Rashid's case 1969 SCMR 141 and Wali Muhammad's case PLD 1974 SC 106 rel.

Haider Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Nemo for Respondents.

SCMR 2011 SUPREME COURT 683 #

2011 SCMR 683

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Muhammad Farrukh Mahmud and Muhammad Sair Ali, JJ

GHULAM SHABBIR AHMED and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 265 of 2005, decided on 28th May, 2009.

(On appeal against the judgment dated 24-10-2002 passed by the Lahore High Court, Multan Bench in Crl. A. No. 34 of 2002).

(a) Penal Code (XLV of 1860)--

----S. 302(b)---Re-appraisal of evidence---Double murder---Prompt F.I.R.-Ocular account supported by medical evidence---Identity of accused was not disputed at all and he had been described by name and by his deeds in promptly lodged F.I.R.---Statements of prosecution witnesses were fully supported by medical evidence and corroborated by the facts---Matter was reported to police within 45 minutes and postmortem of both the deceased were conducted on the same night within six hours of their death---Motive as given in F.I.R. also stood proved and was corroborated by ocular account---Ocular account was also supported from report of Forensic Science Laboratory which revealed that empties recovered from spot were fired from one weapon---Statements of defence witnesses did not help the accused---Effect---Prosecution had successfully proved its case beyond doubt against accused and he was rightly convicted under S. 302(b), P.P.C.---Sentence of death awarded to accused by Trial Court and maintained by High Court was not interfered with by Supreme Court---Appeal was dismissed.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 22---Re-appreaisal of evidence---Identification of accused in Court---Photographs of accused---Accused was not previously known to prosecution witnesses and was only described by features, who was arrested after two years of the occurrence---Prosecution witnesses had seen accused for very short time and they did not identify him during identification parade but identified him at the time of recording of his statement in Court---Effect--Such identification in Court was meaningless as by that time accused was already known to prosecution ,witnesses as only that accused had a conspicuous mark on his forehead which could easily be distinguished front other accused---Complainant handed over two photographs of accused to police within the presence of prosecution witnesses, much before his arrest, which fact knocked out validity of identification test---No one could be convicted and sentenced until and unless his identity as participating accused was established beyond doubt---Prosecution could not prove identification of accused, therefore, Supreme Court set aside sentence of death awarded to accused and acquitted him of the charge under S. 302(b), P.P.C.-Appeal was allowed.

Allah Dad v. The State PLD 1965 OA-.P.) Lah. 288 and Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088 rel.

Arshad Ali Ch. Advocate Supreme Court for Appellants.

Mian Asif Mumtaz, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 28th May, 2009.

SCMR 2011 SUPREME COURT 689 #

2011 SCMR 689

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan and Muhammad Qaim Jan Khan, JJ

PROVINCIAL POLICE OFFICER, N.-W.F.P. and others---Petitioners

Versus

MUHAMMAD NAWAZ---Respondent

Civil Petition No. 175-P of 2009, decided on 22nd April, 2009.

(On appeal from the order of the N.-W.F.P. Service Tribunal, Peshawar dated 1-1-2009 passed in Service Appeal No. 1372 of 2008).

North-West Frontier Province Service Tribunals Act (I of 1974)---

----S. 4---Appeal---Head Constable in Police Department---Removal of appellant's name from Promotion to List "D" on basis of alleged oral complaints against him without issuing hint notice or providing him an opportunity of hearing---Validity---Appellant after his appointment as Constable had passed recruit course---Appellant after passing Lower School Course was promoted as Head Constable and his name was brought on Promotion List "D" after passing Intermediate School Course---Inclusion of appellant's name in Promotion List created a vested right in his favour, which could not be withdrawn without adopting proper legal procedure---Oral complaints should not have weighed with competent authority for passing impugned order---Appellant's name had been removed from Promotion List "D" in violation of principle of audi alteram partern---Service Tribunal accepted appeal and set aside impugned order in circumstances.

Muhammad Iqbal and 11 others v. Superintendent of Police, Khanewal and another 2000 PLC (CS) 1127 and Rashid Ahmad and 3 others v. Superintendent of Police and 2 others 1992 PLC (CS) 58 ref.

Qaiser Rashid, A.A.-G. N.-W.F.P. for Petitioners.

M. Tariq Javed, Advocate Supreme Court for Respondent.

Date of hearing: 22nd April, 2009.

SCMR 2011 SUPREME COURT 691 #

2011 SCMR 691

[Supreme Court of Pakistan]

Present: Javed Iqbal, Nasir-ul-Mulk and Sayed Zahid Hussain, JJ

A.R. AWAN and 2 others---Appellants

Versus

CITY DISTRICT GOVERNMENT, KARACHI and another---Respondents

Criminal Appeals Nos. 506, 507 and 508 of 2005, decided on 22nd April, 2009.

(On appeal from the judgment dated 27-6-2005 of the High Court of Sindh at Karachi passed in Crl. As. Nos. 7, 8 and 10 of 1996).

(a) Sindh Local Government Ordinance (XII of 1979)---

----S.100(2)---Constitution of Pakistan, Art. 185(3)---Contention, inter alia, was that while determining the scale of licence fee in appeals against acquittal, High Court had acted beyond its jurisdiction, as it was not competent to determine the question of rate of licence fee in such proceedings and should have left this question for examination by the authority concerned---Important question of law of public importance having been raised in the petitions, leave to appeal was granted to consider whether the impugned judgment of High Court to that extent could be sustained at law.

(b) Sindh Local Government Ordinance (XII of 1979)---

----Ss. 100(2) & 64---Determination of the scale of licence fee by High Court in appeals against acquittal---Validity---Respondent had filed appeal in High Court against the order of acquittal passed by the Trial Court under S. 417(2), Cr.P.C. and the procedure and manner of disposal of appeals as laid down in S. 423, Cr.P.C. was attracted and required to be followed---High Court while maintaining the acquittal order of accused and dismissing the appeal, had determined the scale of fee payable by the accused petitioners in the concluding paragraph of its judgment, which had been assailed before Supreme Court---Said observations fell outside the scope or ambit of High Court, as court according to the consistent rule was not required to embark upon matters not directly arising for decision or not falling within its ambit of power and was expected to exercise its jurisdiction within- the parameters of the statute governing the lis before it---Respondent under S. 64 of Sindh Local Government Ordinance, 1979, could recover the due taxes or fees---Penal liability and fiscal liability being .quite distinct could not be intermingled---Impugned observations had no direct relevancy or nexus with the criminal matter before the court and after dismissing the appeal against acquittal nothing more was to be done by the court---Observations made in the concluding paragraph of the judgment by High Court were consequently set aside and appeals to that extent were accepted accordingly.

C.P. No. D-49 of 1982 distinguished.

N.S. Bindra, in The Interpretation of Statutes, 7th Edition at page 629; Justice (Retd.) Fazal Karim on Jurisdiction and Judicial Review, Page 63 and F.B. Ali v. State PLD 1975 SC 506 ref.

----General rule---Court should not decide what is unnecessary---Court should decide only those questions which arise directly from the facts of the particular case before it---It is always inadvisable to travel outside the facts of the case and express hypothetical opinions which may only embarrass' the Judges, who may have to consider cases in future arising on different facts.

N.S. Bindra, in The Interpretation of Statutes, 7th Edition at Page 629'ref.

(d) Interpretation of Statutes---

----Court not to extend scope of Act---It is not for the court to extend the scope of the Act on the ground of convenience, when the language of the law is clear beyond doubt.

Hafeez Lakho, Advocate Supreme Court for Appellants.

Manzoor Ahmad, Advocate Supreme Court for Respondent No.1.

Saleem Akhtar, Additional P.-G. Sindh for Respondent No.2.

Date of hearing: 22nd April, 2009.

SCMR 2011 SUPREME COURT 698 #

2011 SCMR 698

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

SOHAIL BUTT---Petitioner

Versus

DEPUTY INSPECTOR-GENERAL OF POLICE (NORTH) NATIONAL HIGHWAY AND MOTORWAY POLICE and others---Respondents

Civil Petition No. 396 of 2009, decided on 20th May, 2009.

(Against the judgment dated 31-12-2008 passed by the Federal Service Tribunal, Islamabad, in Appeal No. 707(R)/CS of 2007).

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---Dismissal of departmental appeal for being time-barred---Effect---Appeal before Service Tribunal would not be competent---Illustration.

Anwarul Haq's case 1995 SCMR 1505; Chairman PIA's case PLD 1990 SC 951; Dr. Anwar Ali Sahto's case PLD 2002 SC 101; Khyber Zaman's case 2004 SCMR 1426 and Syed Ashfat Hussain Shah's case 2006 SCMR 453 rel.

(b) Constitution of Pakistan---

----Art. 212(3)---Findings of Service Tribunal---Validity---Such findings being findings of fact would not call for interference by Supreme Court.

----Ss. 3, 5(1)(4) & 10---Constitution of Pakistan, Art. 212(3)-Dismissal from service---Senior Patrol Officer in National Highways and Motorway Police---Charge of unauthorized absence from duty for . about three months-Non-filing of reply to show cause notice by appellant---Failure of appellant to appear before Inquiry Officer inspite of repeated notices issued to him---Dismissal of departmental appeal for being time barred---Dismissal of appeal by Service Tribunal on merits as well as being time-barred---Validity---Appellant as a member of discipline force would not deserve any leniency for having absented himself from duty for such considerable period without securing permission from his high officer---No question of public importance was involved---Tribunal was justified to come to conclusion that appellant had no case even on merits---Supreme Court declined to grant leave to appeal in circumstances.

(d) Constitution of Pakistan---

----Art. 212(3)---Word "satisfied" as used in Art. 212(3) of the Constitution---Meaning stated.

The word "satisfied" means existence of mental persuasion much higher than mere opinion; a mind not troubled by doubt; 'a mind which has reached on clear conclusion. [Words and phrases].

Blyth v. Blyth {(1966) AER 524 (541)} and Angland v. Payne {1944 NZLR 610 (626)} rel.

(e) Constitution of Pakistan---

----Art. 212(3)---Expression "substantial question of law" as used in Art. 212(3) of the Constitution---Meaning---Such expression would mean a substantial question of law involved in the case as between parties thereof.

Raghuman Prasad Singh and others v. The Deputy Commissioner of Partabgarh and others AIR 1927 P.C. 101 and Sir Chunilal v. Mehta and Sons Ltd. AIR 1962 SC 1314 rel.

(f) Constitution of Pakistan---

----Art. 212(3)---Expression "public importance" as used in Art. 212(3) of the Constitution---Meaning stated.

The word "public importance" can only be defined by a process of judicial inclusion or exclusion, because the expression "public importance" is not capable of any precise definition and has not a rigid meaning, therefore, each case has to be judged in the circumstances of that case as to whether the question of importance is involved. Public importance must include a purpose or aim in which general interest of the community as opposed to the particular interest of the individuals is directly and vitally concerned. [Words and phrases].

Abdul Aziz's case PLD 1982 SC (AJ&K) 16 rel.

(g) Words and phrases---

----"Grants" means permission.

(h) Constitution of Pakistan---

----Art. 212(3)---Appeal to Supreme Court against order of Service Tribunal--- Maintainability--- Constitutional power under Art. 212(3) of the Constitution being discretionary in nature must be exercised reasonably, honestly and not arbitrarily or capriciously or in bad faith---Such appeal would be competent only on ground of law of public importance, otherwise would be barred---Principles.

Haider Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Nemo for Respondents.

SCMR 2011 SUPREME COURT 705 #

2011 SCMR 705

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

KHAN MUHAMMAD and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 36 of 2005, decided on 4th June, 2009.

(On appeal from the judgment dated 21-2-2003 of the High Court of Sindh, Larkana Bench, passed in Criminal Appeal No. 41 of 1999).

(a) Penal Code (XLV of 1860)---

----Ss. 365-A/34 & 302/34---Anti-Terrorism Act (XXVII of 1997), S. 7(i)(a)--- West Pakistan Arms Ordinance (XX of 1965), S. 13(d) & (e)---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted to accused for reappraisement of entire evidence for safe administration of justice.

(b) Penal Code (XLV of 1860)---

----Ss. 365-A/34 & 302/34---Anti-Terrorism Act (XXVII of 1997), S.7(i)(a)---West Pakistan Arms Ordinance (XX of 1965), S. 13(d) & (e)---Appraisal of evidence---Discovery and recovery of dead body of the deceased on the pointation of accused was frilly supported by prosecution witnesses---Revolver recovered at the behest of accused had matched with the crime bullet according to the report of Expert---Statement of prosecution witnesses, confessional statements of accused, medical evidence and incriminating recoveries had all corroborated each other leading to the only conclusion that the deceased had been abducted for ransom and thereafter killed by the accused---Any lapse on the part of Investigating Officer was not by itself sufficient to demolish the evidence of unimpeachable varacity---Appeal was dismissed in circumstances.

Sheikh Liaquat Hussain v. Federation of Pakistan 1999 SCMR 569; Hakim Ali v. The State 1971 SCMR 412 and Sh. Muhammad Amjad v. The State PLD 2003 SC 704 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellants.

Saleem Akhtar, Additional P.-G. Sindh for the State.

Date of hearing: 13th May, 2009.

SCMR 2011 SUPREME COURT 710 #

2011 SCMR 710

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan and Muhammad Qaim Jan Khan, JJ

NASIR KHAN---Petitioner

Versus

WASEEL GUL and another---Respondents

Criminal Petition No. 2-P of 2009, decided on 24th April, 2009.

(On appeal from the judgment dated 5-12-2008 of the Peshawar High Court, Peshawar passed in B.A. 1283 of 2008).

(a) Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S. 365-A/34---Constitution of Pakistan, Art. 185(3)---Kidnapping or abduction for extorting property, valuable security, etc.---Cancellation of bail, refusal of---Accused, no doubt, was charged with a heinous offence, but heinousness of offence would not disqualify him for relief of bail; if otherwise his case was found fit for grant of bail---High Court had allowed bail to accused on cogent and valid reasons, which were not open to any legitimate exception---Two co-accused with similar role had already been admitted to bail by Trial Court, which had not been challenged---Leave to appeal was declined to complainant in circumstances.

Suba Khan v. Muhammad Ajmal and 2 others 2006 SCMR 66 ref.

(b) Criminal Procedure Code (V of 1898)---

----S. 497(2)---Bail---Case of further inquiry---Main consideration for grant of bail under S. 497(2), Cr. P. C. is, that if court forms an opinion on the basis of tentative assessment of evidence that prima facie, reasonable grounds were available to believe that accused has not committed the offence with which he was being charged, he would be allowed bail as of right by virtue of S. 497(2), Cr. P. C.

Suba Khan v. Muhammad Ajmal and 2 others 2006 SCMR 66 ref.

Hussain Ali, Advocate Supreme Court and Mir Adam Khan, Advocate-on-Record for Petitioner. .

Tasleem Hussain, Advocate-on-Record for Respondent No. 1.

Ishtiaq Ibrahim, A.A.-G, N.-W.F.P. for the State.

Date of hearing: 24th April, 2009.

SCMR 2011 SUPREME COURT 713 #

2011 SCMR 713

[Supreme Court of Pakistan]

Present: Javed Iqbal and Sardar Muhammad Aslam, JJ

ANSAR MEHMOOD---Petitioner

Versus

ABDUL KHALIQ and another---Respondents

C.P.L.A. No. 1524 of 2008, decided on 17th July, 2009.

(On appeal from the Judgment dated 21-10-2008 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in W.P. No. 1046 of 2005):

(a) Criminal Procedure Code (V of 1898)---

----S.540---Material witness, examination of---Duty of Court---Where any evidence is essential for just decision of case, it is obligatory upon the court to allow its production and examination.

Muhammad Murad Abro v. The State through A.G. Balochistan 2004 SCMR 966 rel.

(b) Criminal trial---

----Prosecution, fault of---Effect---Complainant should not suffer for fault of prosecution who was negligent in discharging duties and functions.

----Ss. 337-F(i), 337-F (v), 337-F (vi), 148 & 149---Criminal Procedure Code (V of 1898), S.540---Ghayr jaifah-Powers of court under S.540, Cr.P.C.--- Scope--- Material witness, summoning of---Limitation---Close of prosecution evidence---Complainant filed application to produce two doctors and report of medical board at the stage of final arguments---Trial Court dismissed the application on the ground of its being filed at belated stage---Order passed by Trial Court was maintained by Lower Appellate Court in exercise of revisional jurisdiction and also by High Court exercising Constitutional jurisdiction---Validity---Powers of court under S.540, Cr.P.C. were the widest in its amplitude---Court was obliged to summon evidence of material witness whose evidence was essential for just decision---Court while exercising power under S.540, Cr.P.C. had to guard itself from exploitation and should keep guiding principle, what the ends of justice demanded and to avoid filling gaps in negation of justice---When court had arrived at the conclusion that evidence was essential for just decision, then delay in moving application was not relevant---Court itself was empowered even without application from any of the parties to summon witness deemed essential for just decision by applying its judicial mind---Medico-legal certificate was issued by Medical Officer and Radiologist opined fracture on the person of injured---Authenticity of medico-legal certificate was questioned and medical board was constituted at the instance of accused and medical board rendered its opinion---Both the documents were authored by medical officers in discharge of their functions, genuineness of which could not be doubted---Accused would have ample opportunity to discredit the evidence on the touchstone of cross-examination-Supreme Court set aside the orders passed by all the courts below and allowed application for summoning of doctors---Appeal was allowed.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; The State v. Muhammad Yaqoob and others 2001 SCMR 308; Shahbaz Masih v. The State 2007 SCMR 1631; Muhammad Murad Abro v. The State through A.G. Balochistan 2004 SCMR 966: Painda Gul and another v. The State and another 1987 SCMR 886; Dildar v. State through Pakistan Narcotics Board, Quetta PLD 2001 SC 384; Pervaiz Ahmad v. Munir Ahmad 1998 SCMR 326; Muhammad Aslam alias Accha and others v. The State 1984 SCMR 353; Shakir Muhammad and another v. The State PLD 1985 SC 357; Mehrzad Khan v. The State PLD 1991 SC 430; Miss Benazir Bhutto v. President of Pakistan and another 1992 SCMR 140; Abdul Hamid Mian v. Muhammad Nawaz Kasuri 2002 SCMR 468 and Abdul Salam v. The State 2002 SCMR 102 rel.

Muhammad Amir Butt, Advocate Supreme Court for Petitioner.

Hassan Raza Pasha, Advocate Supreme Court for Respondent No. 1.

Saeed Yousaf Khan, Additional A.-G. for Respondent No. 2.

Date of hearing: 17th July, 2009.

SCMR 2011 SUPREME COURT 720 #

2011 S C M R 720

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bukhari, JJ

ASIF IQBAL---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, KHUSHAB and others---Respondents

Criminal Appeal No. 161 of 2009 in Criminal Petition No. 554-L of 2008, decided on 22nd July, 2009.

(On appeal from the judgment dated 30-9-2008 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 16-Q of 2008).

Penal Code (XLV of 1860)---

---Ss. 302/324/342/365/440/468/471/511/148/149/38---Criminal Procedure Code (V of 1898), Ss.202 & 265-K---Qatl-e-amd, attempt to commit qatl-e-amd, kid-napping and abduction---Private complaint---Quashment---During pendency of F.I.R., private complaint was filed against accused in which process was issued by Trial Court and accused were summoned but High Court quashed the proceedings of complaint---Validity---Complainant had filed complaint regarding same occurrence and Trial Court had summoned the accused to face trial after recording preliminary evidence---High Court had given findings on merits despite the fact that no evidence had been recorded so far as at relevant time trial had not commenced and complainant was condemned unheard---Law could favour disposal of cases on merits---It was in the interest of justice that both the parties be provided opportunity to prove their version by producing evidence---Supreme Court set aside the judgment passed 'by High Court and directed Trial Court to dispose of the complaint in accordance with law---Appeal was allowed.

Dr. Abdul Basit, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Shabbir Lali, A.P.-G. for the State.

Date of hearing: 20th July, 2009.

SCMR 2011 SUPREME COURT 723 #

2011 SCMR 723

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan and Muhammad Qaim Jan Khan, JJ

Mst. FAZAL BEGUM---Petitioner

Versus

HASSAN KHAN and another---Respondents

Criminal Petition No. 132-P of 2007 and Crl. A. No. 25-P of 2009, decided on 29th April, 2009.

(On appeal from the judgment dated 1-11-2007 of the Peshawar High Court, Peshawar, passed in Criminal Appeal No. 407 of 2005).

Penal Code (XLV of 1860)---

----S. 354/34---Constitution of Pakistan, Art. 185(3)---Assault or criminal force to woman with intent to outrage her modesty---Leave to appeal was granted to complainant by Supreme Court to reappraise the evidence in order to examine in detail, inter alia, if S. 354-A/34, P.P.C. was attracted in the case instead of S. 354/34, P. P. C.

Shahzad Akbar Khan, Advocate Supreme Court and Sh. Wazir Muhammad, Advocate-on-Record for Petitioner.

Barrister Zahoor-ul-Haq, Advocate Supreme Court for Respondent No. 1.

Attaullah Khan Tangi, Advocate Supreme Court for Respondent No. 2.

SCMR 2011 SUPREME COURT 725 #

2011 SCMR 725

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Sayed Zahid Hussain, JJ

NIAZ-UD-DIN and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeals Nos. 132 and 133 of 2005, decided on 30th September, 2009.

(On appeal from the judgment dated 12-6-2003 passed by the Peshawar High Court, Peshawar, in Criminal A. No. 497 of 2002, Criminal A. No. 506 of 2002 and Murder Reference No. 43 of 2002).

(a) Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Leave to appeal was granted in both the petitions, inter alia, to examine as to whether the accused petitioner had been convicted and sentenced following the principles laid down by Supreme Court for appreciation of evidence in criminal cases and also to examine as to whether evidence against the respondent/accused furnished by the eye-witness coupled with dying declaration of the deceased and medical evidence, was not sufficient to maintain his conviction and High Court had not made a departure from the law enunciated by Supreme Court relating to acceptance of solitary statement of an eye-witness for recording conviction, if the same was found trustworthy and confidence inspiring, as held in Allah Bakhsh v. Shamml (PLD 1980 SC 225).

Allah Bakhsh v. Shammi PLD 1980 SC 225 ref.

(b) Penal Code (XLV of 1860)---

----S. 302---Qatl-e-amd---Appraisal of evidence---Eye-witness was the son-in-law of the deceased and used to cultivate his land and he had explained his visit to the house of his father-in-law and his stay there, being a close relation and member of the family---Presence of the eye-witness in the said house was natural and usual, which was also supported by the dying declaration of another deceased---Eye-witness had seen the occurrence who knew the accused being co-villagers and had the opportunity of recognizing them---Report with the police was not lodged by the said eye-witness, as the son of the deceased had lodged the same---Deceased had made his dying declaration in the Hospital, which was certified by the Doctor that he was. conscious and capable of making the statement---Deposition of eye-witness and dying declaration of the deceased were consistent as to naming and involving the accused in the incident---Statement of the sole eye-witness inspired confidence---Even in a murder case conviction could be based on the testimony of a single witness if the court was satisfied that he was reliable---Accused had attacked the family in the middle hours of the night in police uniform and killed twelve persons and he did not deserve any leniency---On no recognized principle of law accused could be shown clemeney, who had eliminated the entire family from the earth---Conviction and sentence of death of accused were upheld in circumstances---So far as the acquittal of other accused was concerned, the only eye-witness of the occurrence had not named him in this deposition and he had been rightly acquitted by High Court---Both the appeals were dismissed accordingly.

Allah Bakhsh v. Shammi PLD 1980 SC 225; Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others PLD 1992 SC 211; Zarif Khan v. The State PLD 1977 SC 612 and Farmanullah v. Qadeem Khan and another 2001 SCMR 1474 ref.

----Art. 46---Dying declaration---No special mode of recording dying declaration is provided---Dying declaration can be used against the accused when there is nothing to suggest that the deceased had substituted any innocent person in place of the real culprit.

Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others PLD 1992 SC 211; and Farmanullah v. Qadeem Khan and another 2001 SCMR 1474 ref.

(d) Qanun-e-Shahadat (10 of 1984)---

----Art. 46---Dying declaration---Worth and sanctity---Dying declaration is a weaker type of evidence than the evidence subjected to cross-examination, but conviction can be based on the same, as such declaration is made in extremity, when the party is at the point of death, and when every hope of the world is gone, when every motive of falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth.

Zarif Khan y. The State PLD 1977 SC 612 ref.

(e) Penal Code (XLV of 1860)---

----S. 302---Qatl-e-amd---Appraisal of evidence---Single witness, conviction possible---Conviction even in a murder case, can be based on the testimony of a single witness, if court is satisfied that he is reliable; it is the quality of evidence and not the quantity which matters.

Allah Bakhsh v. Shammi PLD 1980 SC 225 ref.

Kh. Muhammad Khan, Advocate Supreme Court for Appellants (in Criminal Appeal No. 132 of 2005).

S. Zafar Abbas Zaidi, Advocate Supreme Court for Appellants (in Criminal Appeal No. 133 of 2005).

Ishtiaq Ibrahim, A.A.-G. for Respondent No. 1 (in Criminal Appeal No. 132 of 2005).

Syed Zafar Abbas Zaidi, Advocate Supreme Court for Respondent No. 2 (in Criminal Appeal No. 132 of 2005).

Kh. Muhammad Khan, Advocate Supreme Court for Respondent No. 1 (in Criminal Appeal No. 133 of 2005).

Ishtiaq Ibrahim, A.A.-G. for Respondent No. 2 (in Criminal Appeal No. 133 of 2005).

Date of hearing: 9th September, 2009.

SCMR 2011 SUPREME COURT 735 #

2011 SCMR 735

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Ch. Ejaz Yousaf and Sardar Muhammad Aslam, JJ

GHULAM RASOOL SHAH and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 298 of 2005, decided, on 21st May, 2009.

(On appeal from the Judgment dated 30-4-2002 passed by the Lahore High Court, Lahore, in Criminal Appeal No. 144-J of 1998).

(a) Penal Code (XLV of 1860)---

----Ss. 302/34 & 120-B/34---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd and criminal conspiracy----Leave to appeal was granted to accused to examine the questions of law; firstly, that a person who was facing criminal charge and particularly the capital charge of murder, if failed to engage a private counsel, would not be entitled to the assistance of a defence counsel of his choice on State expenses; secondly, an accused by his disorderly conduct of non-cooperation with the court, if caused hindrance in the proceedings and delayed the conclusion of the trial, would lose the right of defence by a counsel of his choice; and thirdly, the trial without defence counsel was legal as in absence of the counsel the witnesses could not be cross-examined by the accused themselves and even if they would have been cross-examined by the accused, it would not be a substitute of cross-examination of the counsel.

(b) Penal Code (XLV of 1860)---

----Ss. 302/34 & 120-B/34---Qatl-e-amd and criminal conspiracy---Reappraisal of evidence---Accused had shown unwillingness to be represented by the defence counsel and conducting of cross-examination on their behalf, on the prosecution witnesses and court witnesses examined by Trial Court---Accused had not engaged a private counsel and services of defence counsel had been provided at State expenses---Opportunity was also granted to accused to conduct cross-examination themselves, but they refused to do so---Accused even remained mute during their examination under S. 342, Cr. P. C. and gave no answer accepting or denying the guilt---Conduct exhibited by the accused was disorderly, stubborn, unethical and not approvable, meant to delay the trial deliberately by erecting stumbling block in the way of the court---Undeniably, to ascertain the truth or falsity to a charge the statements of the witnesses were judged by conducting cross-examination, which was most powerful engine; to test the credibility---Statements recorded without going through mill of cross-examination were bound to result in injustice and substantial injustice might occur to an accused---Safer principle was to allow crass-examination by granting reasonable opportunity---Similarly, provision of a defence counsel at State expense should be out of lawyers having acumen, interest and some experience of trial of murder cases---Though the accused had no choice claiming engagement of a particular counsel at State expenses, yet he should be given the choice to select one of the counsel out of the list of defence counsel maintained by the court---Present accused should be given time to engage a counsel privately of their own choice, failing which Trial Court would provide them defence counsel at State expenses of their choice out of the list maintained by the Court---If accused failed to engage a counsel of their own or refused to be represented by a defence counsel provided at State expenses, court would be at liberty to proceed with the trial and the defence counsel so appointed would be called upon to conduct cross-examination on prosecution witnesses and call for evidence in defence---Judgments of the courts below were set aside and the case was remitted back to Trial Court for denovo trial in circumstances.

Moti Singh and others v. Dhanukdhari Singh and others AIR 1923 Patna 53; Ram Lal v. Harpal and another AIR 1929 Allahabad 236; Dikson Mali and another v. Emperior AIR 1942 Patna 90; Mt. Khadija Begum v. Nisar Ahmad AIR 1936 Lah. 887; Hakeem v. The State PLD 1963 (WP) Kar. 63; The State V. Ghulam Ali and 5 others PLD 1975 Kar. 90 and Abdul Raoof v. The State PLD 2001 Lah. 463 ref.

M. Zaman Bhatti, Advocate Supreme Court for the Appellants.

M. Siddique Khan Baloch, D.P.-G., Punjab for the State.

Date of hearing: 21st May, 2009.

SCMR 2011 SUPREME COURT 743 #

2011 SCMR 743

[Supreme Court of Pakistan]

Present: Javed Iqbal, Ijaz-ul-Hassan and Muhammad Qaim Jan Khan, JJ

Syed MUHAMMAD HUSSAIN SHAH---Petitioner

Versus

ABDUL QAYYUM and others---Respondents

Civil Appeals Nos. 1580 and 1581 of 2004, decided on 30th July, 2009.

(On appeal from the judgment dated 5-4-2004 of the High Court, of Balochistan, Quetta passed in 713 of 2000 and 716 of 2000).

(a) Balochistan Tenancy Ordinance (XXIV of 1978)---

----Ss. 2(8), 33 & 44---Ejectment of occupants was sought from the houses situated in Abadi Deh---Jurisdiction---Where the houses in question were not situated in the land which was let for tenancy to the tenants or occupied by them under the tenancy but were situated in "Abadi Deh", such land could not be termed as "part and parcel of the tenancy" giving jurisdiction to Revenue Court to initiate ejectment proceedings under the Balochistan Tenancy Ordinance, 1978---In the present case, with consent of the parties, case was sent for adjudication to the Revenue Court---Such consent did not confer jurisdiction on the Revenue Court, which otherwise had no jurisdiction in the matter in view of the admitted position that the houses in question were situated at a place in a village which was not a site of building occupied on the land of tenancy let for agricultural purposes---When court suffered from want of jurisdiction, no amount of consent or acquiescence in the proceedings could invest such court with the jurisdiction and principle of estoppel was not attracted in such circumstances---Principles.

Muhammad Hussain and another v. Muhammad Shafi and others 2004 SCMR 1947 and Mukhtar Ahmad and another v. Rana Ghulam Rasool 2004 SCMR 407 ref.

(b) Jurisdiction---

----When Court suffered jurisdiction, no amount of consent or acquiescence in the proceedings could invest such court with such jurisdiction and principle of estoppel was not attracted in such circumstances.

----Principles of---Applicability---Scope---When Court suffered jurisdiction, no amount of consent or acquiescence in the proceedings could invest such court with such jurisdiction and principle of estoppel was not attracted in such circumstances.

(d) Constitution of Pakistan---

----Art. 185-Appeal to Supreme Court---Scope---Supreme Court does not interfere with findings of facts reached by primary courts or High Courts---When findings of the courts below are, on the whole, reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence, burden lay heavily on the appellant to show that concurrent findings recorded by the courts below are not sustainable---Where the High Court, had scanned scrutinized each material piece of evidence and arrived at definite conclusion with reasons based upon the facts on record; had discussed all aspects of the matter and assigned cogent and sound reasoning before, arriving at the conclusion and where neither any misreading or non-reading of the evidence on record nor any infirmity legal or factual, had been pointed out in the impugned judgment, judgment of the High Court was plainly correct to which no exception could be taken.

Abdul Ghaffar v. The State PLD 2007 SC 467 ref.

Kamran Murtaza, Advocate Supreme Court and M.W.N. Kohli, Advocate-on-Record for Petitioner.

Iftikharul Haq, Advocate Supreme Court and SAM Quadri, Advocate-on-Record, for Respondents Nos. 1 to 4 (in C.A. No. 1580 of 2004).

Iftikharul Haq, Advocate Supreme Court and SAM Quadri, Advocate-on-Record for Respondents Nos. 1 to 5 (in C.A. No. 1581 of 2004).

Date of hearing: 4th June, 2009.

SCMR 2011 SUPREME COURT 749 #

2011 SCMR 749

[Supreme Court of Pakistan]

Present: Javed Iqbal and Sardar Muhammad Aslam, JJ

Mst. BIBI GHAZALA -Appellant

Versus

MEMBER, BOR PUNJAB, LAHORE and others---Respondents

Civil Appeal No. 1585 of 2001, decided on 7th July, 2009.

(On appeal from the Judgment dated 22-3-2000 passed by the Lahore High Court, Rawalpindi Bench, in W.P. No. 258 of 1989).

Punjab Pre-emption Act (I of 1913)---

----S.21---West Pakistan Board of Revenue Act (XI of 1957), S.8---Land Reforms Regulations, 1972, Regln. 25 [as amended by Land Reforms (Amendments) Act (XLVIII of 1976)J---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Right of pre-emption---Exchange of land---Onus to prove---Power of review, exercise of---Scope---Pre-emptor was tenant over suit land and assailed transaction of suit land alleging that it was in fact sale which was given colour of exchange---Suit was finally decreed in favour of pre-emptor by Board of Revenue in exercise of review jurisdiction, which judgment was maintained by High Court---Validity---Defendant discharged her initial onus by producing exchange deed and its marginal witnesses to show that no amount was paid at the time of its execution and registration---It was simple transaction of sale exchange between defendant and vendor and both the lands, the subject matter of exchange were almost of equal acreage and located in same village---Pre-emptor could not take benefit of the only fact that land, the subject matter of suit, was within the limits of Town Committee while the other was outside town committee--Satisfactory evidence of payment of price in cash was not available---Only factor that the exchanged land in lieu of suit land was located outside Town Committee, could not lead to a conclusion that transaction was a sale---Right of pre-emption was conferred on tenant and forum of appeal and revision were provided by addition of sub-paras Nos.5, 6, 7, 8 and 9 in para 25 of Land Reforms Regulations, 1972, whereby right of appeal to Commissioner and Revision before Board of Revenue was made available in paras 25 (6) and 25 (7) of West Pakistan Board of Revenue Act, 1957, respectively---No provision for review was kept in Land Reforms Regulations, 1972, regarding preemption-Review was a substantive right and could be exercisable only if backed by statutory provision of law---Power of review was exercised only if an error was apparent on the face of record---Matter was not heard by Board of Revenue as regular appeal and order in review did not meet requisites provided in O. XLVII, C.P.C.---Power of review under S.8 of West Pakistan Board of Revenue Act, 1957, was wrongly exercised in proceedings arising out of Land Reforms Regulation, 1972, which had its own inbuilt procedure---Review petition before Board of Revenue was incompetent, therefore, order of High Court affirming review order was not sustainable and the same was set aside---Appeal was allowed.

Baqi Jan and 6 others v. Haji Mama Khel and others 1992 SCMR 1785; Sher Azam v. Fazle Azim Shah 1972 SCMR 649; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 and Riaz Hussain and others v. Board of Revenue and others 1991 SCMR 2307 rel.

Ch. Muhammad Anwar Bhinder, Senior Advocate Supreme Court for Appellant.

Abdul Rehman, Naib Tehsildar for Respondents Nos. 1 to 3.

Zaheer Bashir Ansari, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Respondent No. 4.

Date of hearing: 7th July, 2009.

SCMR 2011 SUPREME COURT 753 #

2011 SCMR 753

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Sayed Zahid Hussain, JJ

MUHAMMAD AKBAR---Petitioner

Versus

MUHAMMAD ANWAR and others---Respondents

Civil Petition No. 1009 of 2004, decided on 15th June, 2009.

(On appeal from the judgment dated 8-3-2004 of the Lahore High Court, Rawalpindi Bench passed in Writ Petition No. 1797 of 2001).

Specific Relief Act (I of 1877)---

----S.42---West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S. 2-A, proviso---Constitution of Pakistan, Art.185(3)---Declaration of title---Past and closed transaction, principle of---Applicability---Delivery of possession---Procedure---During execution of decree passed in favour of respondents by Civil Courts, revenue authorities while relying upon S.2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, declined to attest mutation in their favour---Validity---Decree of Trial Court stood executed on 5-1-1982, after pronouncement of judgment of Supreme Court on 14-11-1981---Any correction in allotted shares by acceptance of review petition did not re-open past and closed transaction on the ground of non-delivery of actual physical possession as Dakhal Malkana (possession as owner) had been given to respondents on 14-7-1981---On passing of decree as modified by Lower Appellate Court, respondents became co-sharers in suit property thus only joint possession could be delivered as the property was not susceptible of physical possession---Decree in favour of respondents stood executed on 1-8-1983 through sanction of mutation and delivery of possession by way of "Dakhl Malkana" before enforcement of S.2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962---Delivery of actual physical possession was not necessary to make decree in favour of respondent as past and closed transaction in terms of proviso to S.2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962---Supreme Court declined to interfere in judgment passed by High Court in exercise of Constitutional jurisdiction, in favour of respondents---Leave to appeal was refused.?

Sh. Iftikhar Ahmed, Advocate Supreme Court for Petitioner.

Respondents Nos. 1 to 5 in person.

SCMR 2011 SUPREME COURT 758 #

2011 SCMR 758

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Sardar Muhammad Aslam, JJ

HAZARA and others---Appellants

Versus

MUHAMMAD YAR and others---Respondents

Civil Appeal No. 369 of 2003, decided on 29th June, 2009.

(On appeal from the judgment dated 13-1-2000, passed by the Lahore High Court, Multan Bench Multan, in Civil Revision No. 83-D of 1996).

(a) Constitution of Pakistan---

----Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether High Court had not exceeded limits of revisional jurisdiction, as laid down by Supreme Court in number of cases; whether High Court arrived at correct findings on disputed questions; and whether judgment of High Court did not cause failure of justice.

Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 rel.

(b) Specific Relief Act (I of 1877)---

----S.12---Qanun-e-Shahadat (10 of 1984), Art.72---Civil Procedure Code (V of 1908), S.115---Agreement to sell---Proof---Revisional jurisdiction of High Court, exercise of---Principles---Suit and appeal filed by plaintiffs were concurrently dismissed by Trial Court and Lower Appellate Court but High Court in exercise of revisional jurisdiction decreed the suit in favour of plaintiffs---Validity---Execution of agreement of sale was not proved by plaintiffs and their evidence in regard to payment of earnest amount was contradictory---Possession of plaintiffs was in capacity as tenants and not under agreement of sale and suit for ejectment and produce against plaintiffs was decreed in favour of defendant, negating stand of plaintiffs' possession under agreement---Evidence available on record was thoroughly examined by Trial Court as well as by Lower Appellate Court---High Court, in exercise of its revisional jurisdiction, was not called upon to re-appraise and re-evaluate merits of evidence of parties in absence of any illegality or non-reading/misreading of evidence---High Court travelled beyond its jurisdiction in re-examining entire evidence, searching support for another possible conclusion, and such approach had not been approved by Supreme Court and warranted interference---Supreme Court set aside the judgment and decree passed by High Court in exercise of revisional jurisdiction and suit filed by plaintiffs was dismissed---Appeal was allowed.?

Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 and Allah Dino v. Muhammad Umar and 2 others 1974 SCMR 411 rel.

Abdul Rashid Awan, Advocate Supreme Court for Appellants.

Dr. Aslam Khaki, Advocate Supreme Court for Respondents.

Date of hearing: 29th June, 2009.

SCMR 2011 SUPREME COURT 762 #

2011 SCMR 762

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bukhari, JJ

BASHIR AHMED---Petitioner

Versus

GHULAM RASOOL---Respondent

Civil Petition No. 871-L of 2005, decided on 29th July, 2009.

(Against order dated 14-3-2005 of the Lahore High Court, Lahore passed in Civil Revision No 438 of 2005).

Punjab Pre-emption Act (IX of 1991)---

----S. 13 --Pre-emption suit---Talb-i-Ishhad, performance of---Proof---Extent---Held, in circumstances, it was imperative for the plaintiff, in order to succeed in the suit for pre-emption, to produce evidence, including the Postman, to prove that in fact notice of Talb-i-Ishhad was served upon the defendant or that he "refused to accept the notice", which was sent at his address---Findings of High Court that "a plaintiff was not required to produce the acknowledgment due receipt as the only requirement was that of sending of notice through registered post acknowledgment due; plaintiff was not required to establish on record that the said notice had been received by the vendee and its acknowledgment receipt was also received by the plaintiff after its service on the vendee" were contrary to law---Principles.

Muhammad Bashir v. Abbas Ali Shah 2007 SCMR 1105 fol. A. H. Masood, Advocate-on-Record for Petitioner.

Mian Atta-ur-Rehman, Advocate-on-Record for Respondent.

Date of hearing: 29th July, 2009.

SCMR 2011 SUPREME COURT 766 #

2011 SCMR 766

[Supreme Court of Pakistan]

Present: Javed Iqbal, Mian Shakirullah Jan and Sardar Muhammad Aslam, JJ

MEHMOOD HUSSAIN SHAH and others---Petitioners

Versus

MUNIR HUSSAIN SHAH and others---Respondents

C.P.L.A. No. 984 of 2008, decided on 8th July, 2009.

(On appeal from the judgment dated 30-4-2008 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in R.S.A. No. 17 of 1986).

Punjab Pre-emption Act (I of 1913)---

---Ss. 19 & 20---Notice to or by pre-emptor---Extinguishment of right of pre-emption---Scope---Pre-emptor who had a superior right of pre-emption, being son of vendor, was not served any notice under S.19, Punjab Pre-emption Act, 1913, so extinguishment of his right of pre-emption could not be pleaded.

Diwan Chand v. Ghulam Hussain 30 Punjab Record 1897 fol.

Chaudhry Afrasiab Khan, Advocate Supreme Court along with M.S. Khatak, Advocate-on-Record for Petitioners.

Gul Zarin Kiyani, Advocate Supreme Court and G.N. Gohar, Advocate-on-Record for Respondent No. 1.

Date of hearing 8th July, 2009.

SCMR 2011 SUPREME COURT 769 #

2011 SCMR 769

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD AYAZ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 365 of 2007, decided on 15th February, 2011.

(Against the judgment dated 12-12-2006 passed by Lahore High Court Rawalpindi Bench, Rawalpindi in Criminal Appeal No. 47-T of 2004 and Murder Reference No. 9-T of 2004).

Anti-Terrorism Act (XXVII of 1997)---

----S. 7 (a)---Qanun-e-Shahadat (10 of 1984), Art. 22---High Court (Lahore) Rules and Orders, Vol. III, Part-C, Chap.11---Terrorism---Appreciation of evidence---Identification parade---Principles---Details of dummies---Benefit of doubt---Description of accused, non-mentioning of---Accused were convicted by Trial Court under S. 7(a) of Anti-Terrorism Act, 1997, and were sentenced to death on four counts---Validity---Availability of heavy layer of smoke caused by two strong explosions between prosecution witnesses on one side of place of explosions and accused on the other and finally chaos, panic and pandemonium resulting from explosions and vague and general kind of description of three accused given through F.I.R., made possibility of prosecution witnesses having registered faces and identity of accused open to serious exception and to the resultant doubts---Absence of complete description of dummies at test identification parade without their addresses, their occupation and without any clue whether they were fellow prisoners or outsiders; admitted dis-similarities in height, physique, features, complexion, appearance and dress of dummies and accused persons; absence of any information whether accused persons and dummies were similar in matters of beards or being clean-shaven; absence of disclosure by prosecution about actual date of arrest of three accused persons; declared involvement of three accused in another case and possibility of accused having remained in police custody on account of that another case prior to identification; absence of any finding and decision by Magistrate supervising identification parade contradicting admitted assertion of accused persons being in fetters at the time of identification; mere alleged pointation of three accused persons by three prosecution witnesses without disclosing connection in which they had been identified or role which each or anyone of them had played in the occurrence; non-sealing of report of identification proceedings and other relevant documents after report had been finalized on the day of test identification and providing copy of the same to Investigating Officer before sealing the same on next day; four sheets of identification report being of a kind different from last two sheets of report, were the kind of infirmities in actual proceedings leading to test identification of accused persons which would render the exercise also open to serious doubts---Entire fate of prosecution case hinged exclusively on identification of accused persons by three alleged eye-witnesses---Finding of guilt recorded against three accused was not sustainable in view of established legal principles regulating the subject---Conviction and sentence awarded to accused by Trial Court and maintained by High Court were set aside and all accused were acquitted of the charge---Appeal was allowed.?

Imran Ashraf and 7 others v. The State 2001 SCMR 424; Khadim Hussain v. The State 1985 SCMR 721; Lal Singh v. The Crown ILR 51 Lah. 396; Qurban and another v. The State 1994 PCr.LJ 150 and Ghulam Rasul and 3 others v. The State 1988 SCMR 557 rel.

M. Asghar Rokhari, Advocate Supreme Court for Appellants.

M. Irfan Malik, Additional P.-G. for the State.

Mushtaq Sukhera, Additional I.G.P. (CID) on Court's Notice.

Dates of hearings: 22nd to 24th December, 2010.

SCMR 2011 SUPREME COURT 782 #

2011 SCMR 782

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

HAQ NAWAZ and others---Appellants

Versus

Haji GHULAM FARID and others---Respondents

Civil Appeal No. 89 of 2003, decided on 2nd December, 2010.

(On appeal from the judgment dated 30-12-2002 passed by Lahore High Court Multan Bench, Multan in R.S.A. No. 142 of 1988).

(a) Punjab Pre-emption Act (I of 1913)---

----S.21---Superior right of pre-emption---Co-shareres---Mala fide---Proof---Suit filed by pre-emptors was decreed in their favour by Trial Court on the ground that they were co-sharers in Khata and Khewatdar but Lower Appellate Court reversed the findings---Judgment and decree passed by Lower Appellate Court were set aside by High Court and judgment and decree passed by Trial Court were restored---Vendees alleged mala fides in instituting the suit by per-emptors---Validity---Mala fide was not a word of art but it was a fact which needed to be established by appropriate evidence---No evidence on the point of mala fide was adduced by vendees---Supreme Court declined to interfere in the judgment and decree passed by High Court---Appeal was dismissed.

1998 SCMR 2716; PLD 1978 SC 133; 1987 SCMR 1874; 2002 SCMR 49; Abaid-ur-Rehman and others v. Mahmand and others 1999 SCMR 201; 1996 SCMR 806 and 1996 SCMR 1729 ref.

Mehr Allah Ditta and another v. Muhammad Ali and another PLD 1972 SC 59; Nazar Muhammad and another v. Talib Hussain 1991 SCMR 1320; Muhammad Amin v. Maqbool Ahmad 1993 SCMR 498; Shahmand and others v. Allah Bakhsh 1997 SCMR 424 and Abaid-ur-Rehman and others v. Mahmand and others 1999 SCMR 201 distinguished.

(b) Mala fide---

----Not a word of art but a fact which needed to be established by appropriate evidence.

Malik Muhammad Qayyum, Senior Advocate Supreme Court, Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court and G.N.. Gohar, Advocate-on-Record for Appellants.

Gulzarin Kiani, Senior Advocate Supreme' Court and M.S. Khattak, Advocate-on-Record for Respondents Nos. 1 to 10.

Ex parte for Respondents Nos. 11 to 30.

Date of hearing: 2nd December, 2010.

SCMR 2011 SUPREME COURT 788 #

2011 SCMR 788

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sarmad Jalal Osmany, and Sayed Zahid Hussain, JJ

Criminal Original Petition No. 47 of 2008 in Civil Appeal No. 1421 of 2006

(Against the order dated 15-8-2006 passed by this Court in C.A. No. 1421 of 2006).

Criminal Original Petition No. 12 of 2009 in Civil Petition No. 1842 of 2008

(Against the order dated 25-2-2009 passed by this Court in C.P. No. 1842 of 2008).

SALEEM ULLAH KHAN---Petitioner

Versus

SHAHID HAMID and another---Respondents

Criminal Original Petition No. 47 of 2008 in Civil Appeal No. 1421 of 2006 and Criminal Original Petition No. 12 of 2009 in Civil Petition No.1842 of 2008, decided on 29th April, 2009.

(a) Civil service---

----Promotion---Promotion is not such a guaranteed right as any one can claim or seek enforcement through a court---Rationale behind seems to be the satisfaction of the ultimate competent authority in the hierarchy to which the civil servant may belong, as the best judgment to determine the suitability of a particular person for the post vests with the competent departmental authority---Interference with an assessment made by the departmental authority is rarely interfered with by the courts.

Syed Noorul Hasan v. The Secretary, Ministry of Industries, Government of Pakistan Islamabad and others 1987 SCMR 598; Zafar Ullah Baloch v. Government of Balochistan and others 2002 SCMR 1056; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 and Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative, Walton Training, Lahore and others PLD 2003 SC 110 ref.

(b) Civil service---

----Promotion-Public functionaries are supposed to be acting in good faith while performing their public functions and discharging their-duties, unless proved to the contrary.

----S. 9---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan, Arts 184 & 190---Promotion---Respondents although had purported to consider the case of the petitioner for promotion, yet stricto sensu and in letter and spirit the order of Supreme Court passed in the matter had not been carried out or complied with---In a petition filed by the Federation, Deputy Attorney-General had given an undertaking on the basis whereof the same was disposed of---Order of Supreme Court had to be implemented and carried out by the respondents in letter and spirit as they were bound by Article 190 of the Constituted to do so---Respondents were consequently directed to consider the case of the petitioner in a just and fair manner by taking into consideration his point of view---Petition was disposed of accordingly.

Syed Noorul Hasan v. The Secretary, Ministry of Industries, Government of Pakistan Islamabad and others 1987 SCMR 598; Zafar Ullah Baloch v. Government of Balochistan and others 2002 SCMR 1056; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129; Muhammad Allis and others v. Abdul Haseeb and others PLD 1994 SC 539; Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative, Walton Training, Lahore and others PLD 2003 SC 110 and Zulfiqar-ul-Hussain and 19 others v. Oil and Gas Development Corporation 2003 SCMR 1115 ref.

Petitioner in person.

Miss Nahida Mehboob Ellahi, D.A.-G. for Respondents.

SCMR 2011 SUPREME COURT 794 #

2011 SCMR 794

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bukhari, JJ

GHULAM RASOOL and others---Appellants

Versus

AKBAR ALI and others---Respondents

Civil Appeal No. 1849 of 2005, decided on 11th June, 2009.

(Against judgment dated 14-2-2005 of the High Court of Sindh, Karachi passed in Civil Revision Application No. 3 of 1999).

(a) Registration Act (XVI of 1908)---

----S.47---Pakistan (Administration of Evacuee Property) Act (XII of 1957), S.20---Constitution of Pakistan, Art. 185 (3)---Leave to appeal was granted by Supreme Court to determine actual date of execution of sale deed under Registration Act, 1908; and whether transaction of sale by vendor in favour of vendee required confirmation by Custodian Evacuee Property within the meaning of S.20 of Pakistan (Administration of Evacuee Property) Act, 1957.

(b) Registration Act (XVI of 1908)---

----S.47---Pakistan (Administration of Evacuee Property) Act (XII of 1957), S.20---Specific Relief Act (I of 1877), S. 42---Evacuee property, status of---Determination---Confirmation of Custodian Evacuee Property---Date of operation of sale deed---Suit property was purchased by predecessor-in-interest of plaintiffs on 9-11-1946 and sale deed was registered on 3-3-1947 but authorities allotted the suit land to predecessor-in-interest of defendants treating the same as evacuee property---Trial Court decreed the suit in favour of plaintiffs, which decree was maintained by High Court in exercise of revisional jurisdiction---Validity---Registered document was to operate from time/day when it was written and signed---Such document would create right, title and interest in favour of transferee from the date of execution and not from the date of registration---Sale deed was written and signed on 9-11-1946, however it was registered on 3-3-1947, therefore, perforce of S.47 of Registration Act, 1908, it would deem to operate from 9-11-1946 and not from 3-3-1947---Target date (first day of March, 1947) was provided under S.20 (1) of Pakistan (Administration of Evacuee Property) Act, 1957, whereafter no creation or transfer of any right or interest upon any property could have been made on behalf of any evacuee so as to confer any right or remedy on any party thereto unless it was confirmed by Custodian---As the sale deed was executed on 9-11-1946, i.e. before target date, therefore, it was neither a property left by evacuee nor required any confirmation by Custodian, as property vested with vendee before target date---As such the property did not require any confirmation by Custodian under S.20 (1) of Pakistan (Administration of Evacuee Property) Act, 1957---High Court rendered reasoned judgment and Supreme Court was not persuaded to interfere in it and the same was maintained---No misreading or non-reading of evidence on record was pointed out by defendants---Appeal was dismissed.

Jumma Khan v. Mahmud Khan PLD 1973 SC 289 and Habibur Rehman v. Wandania PLD 1984 SC 424 distinguished.

Attaullah Malik v. The Custodian, Evacuee Property PLD 1964 SC 236; Muhammad Sadiq v. Muhammad Ramzan 2002 SCMR 1821; Fazal Karim v. Muhammad Afzal PLD 2003 SC 818 and Muhammad Ghazan v. Asghar Hussain 1999 YLR 2480 rel.

----Art. 185 (3)---Contradictory plea---Effect---Appellants are precluded from taking contradictory pleas before Supreme Court.

Hashwani Hotels Ltd. v. Government of Pakistan 2007 SCMR 1131 rel.

Naraindas C. Motiani, Advocate Supreme Court for Appellants.

Zahid Qurban Ali, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondents Nos. 1, 4-A, 4-C, 4-D and 5.

Date of hearing: 11th June, 2009.

SCMR 2011 SUPREME COURT 801 #

2011 SCMR 801

[Supreme Court of Pakistan]

Present: Ghulam Rabbani and Muhammad Moosa K. Leghari, JJ

Syed HAROON ALI RIZVI---Petitioner

Versus

GOVERNMENT OF SINDH and others---Respondents

Civil Petition No. 503-K of 2009, decided on 29th June, 2009.

(On appeal from the judgment dated 14-4-2009 passed by Sindh Service Tribunal, at Karachi in Appeal No. 32 of 2007).

Constitution of Pakistan---

----Art. 212(3)---Civil service---Promotion---Respondents serving as Assistant Warden Fisheries in BPS-9, were promoted as Assistant Director, Fisheries in BPS-17 on regular basis vide notification dated 23-8-1990---Petitioner who claimed to be senior in rank to the respondents challenged their eligibility of promotion by filing departmental appeal, which having remained dormant, petitioner filed appeal before Service Tribunal---Appeal having been dismissed by the Service Tribunal being hopelessly time barred, petitioner had filed petition for leave to appeal---Respondents were promoted in the year 1990, whereas the petitioner had challenged their eligibility in the year 2006, with an abnormal delay of 16 years for which no comprehensive explanation was forthcoming---In the absence of any factual or legal lacuna in the impugned judgment of the Service Tribunal, petition being devoid of merit, was dismissed, in circumstances.

Ansari Abdul Latif, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

SCMR 2011 SUPREME COURT 803 #

2011 SCMR 803

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan and Muhammad Qaim Jan Khan, JJ

Mian GHAYASSUDDIN and others---Petitioners

Versus

Mst. HIDAYATUN NISA and others---Respondents

Civil Petition No. 616-P of 2004, decided on 27th April, 2009.

(On appeal from the judgment dated 28-6-2004 of the Peshawar High Court, Peshawar, passed in Civil Revision No. 614 of 2001).

(a) Constitution of Pakistan---

----Art. 185(3)---Civil Procedure Code (V of 1908), S. 115---Petition for leave to appeal---Judgments and decrees of courts below affirmed by High Court in revision---Petitioner's plea that impugned judgments and decrees suffered from vice of non-reading and misreading of evidence---Validity---Mere such plea without a positive attempt to substantiate same would be of no consequence.

(b) Islamic Law---

----Gift---Mutation of gift alleged by sons to have been made in their favour by mother during her life time---Suit by daughters claiming Islamic share in legacy of their deceased mother---Proof---Sans had not satisfactorily discharged onus to prove that gift was made without exercising undue influence over donor or that she had independent advice at relevant time and she had made gift with her free will and consent---Evidence produced by daughters showed that donor at relevant time was of 90 years age and under treatment of a doctor and factually had lost her faculty of memory and understanding; that donor expired in hospital; and gift mutation had been attested close to date of ailment and death of donor---Suit of daughters was decreed in circumstances.

Sh. Wazir Muhammad, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 27th April, 2009.

SCMR 2011 SUPREME COURT 806 #

2011 SCMR 806

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

Messrs VICTOR ELECTRONICS APPLIANCES INDUSTRIES PVT. LTD.---Appellant

Versus

HABIB BANK LIMITED and others---Respondents

Civil Appeal No. 1478 of 2007, decided on 4th February, 2010.

(On appeal from the judgment dated 20-12-2006 of the High Court of Sindh, Karachi passed in HCA No. 115 of 2005).

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 9---Civil Procedure Code (V of 1908), S.10---Suit for recovery of money by customer against Bank on basis of Letter of Credit---Filing of such suit under ordinary law and passing of decree in favour of plaintiff by civil court---Filing of appeal against such decree by Bank---Return of plaint to Banking Court by Appellate Court on plaintiff's statement conceding jurisdiction of Banking Court in the matter---Plea of plaintiff before Supreme Court that jurisdiction of a court could be created through a concession or an agreement between parties---Validity---Contents of plaint showed that plaintiff had availed financial facilities advanced by Bank including a facility for establishing Letters of Credit---Cause of action alleged in the plaint to have arisen to plaintiff on account of failure of Bank to establish a Letter of Credit within agreed timeframe---Letter of Credit was included in definition of "finance" given in Financial Institutions (Recovery of Finances) Ordinance, 2001---Relationship between parties was that of customer and Banker---According to provisions of S. 9 of Financial Institutions (Recovery of Finances) Ordinance, 2001 and such concession of plaintiff recorded in impugned judgment, only Banking Court had the jurisdiction in the case---Supreme Court repelled the plea of plaintiff and dismissed appeal filed by him.

(b) Jurisdiction---

----Jurisdiction of a court cannot be created through agreement between parties.

Saalim Saleem Ansari, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Appellant.

Iqbal Haider, Senior Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondents.

SCMR 2011 SUPREME COURT 808 #

2011 SCMR 808

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and M. Javed Buttar, JJ

MUHAMMAD MISKEEN and others---Petitioners

Versus

NOOR MUHAMMAD and others---Respondents

Civil Review Petition No. 160 of 2008 in Civil Appeal No. 847 of 2005, decided on 9th July, 2009.

(On review from the judgment dated 26-9-2008 of this court passed in Civil Appeal No. 847 of 2005).

Constitution of Pakistan---

----Art. 188---Review of Supreme Court judgment---Counsel for the petitioners had not been able to point out any error floating on the surface of the record of the impugned judgment sought to be reviewed, he had however, submitted that it was a case of extreme hardship---Contentions had been opposed---Supreme Court, however, in the interest of justice once again looked at the record and did not find any mistake/error or illegality in the judgment under review---Transaction of exchange, in the present case, was entered into in the year 1937; whereas the suit for declaration and possession was instituted on 26-3-1994---Transferor, the predecessor of the petitioners was aware of the transaction of exchange, he himself got entered mutation on 3-7-1937 which was attested in presence of both the parties on 8-6-1939---Transferor remained alive till 1990 but never brought any suit to challenge the validity of transfer made by him---Physical possession of the property had changed hands in 1939---Transferee remained alive till 1949 and predecessor of the petitioners remained satisfied and silent for 53 years despite the fact that a person from another village had throughout remained in physical possession of his previously owned property in the village, therefore, on the face of it, the suit instituted by the petitioners, who were legal heirs of the said transferor, on 26-3-1994, was hopelessly barred by time---Review petition was dismissed.

Zulfikar Khalid Maluka, Advocate Supreme Court for Petitioners.

Gulzrin Kiyani, Senior Advocate Supreme Court for Respondents.

SCMR 2011 SUPREME COURT 810 #

2011 SCMR 810

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD NAWAZ---Petitioner

Versus

SAEED AHMED and others---Respondents

Criminal Petition No. 631 of 2010, decided on 4th January, 2011.

(On appeal from the judgment dated 25-10-2010 in Cr. A. No.399, of 2006 passed. by the Lahore High Court Multan Bench, Multan).

Penal Code (XLV of 1860)---

----Ss.302(b) & 34---Qatl-e-amd---Reappraisal of evidence---Recovery and motive---Proof---Accused were convicted under S. 302(b) P.P.C. and were sentenced to imprisonment for life but High Court acquitted them---Validity---Accused were arrested on 12-2-2006 from Chakki of one accused but neither any memo of arrest was produced on record nor it was prepared and there was no person who acted as witness of arrest---After about four days of arrest of accused, crime weapon was recovered in presence of close relatives of complainant out of then one was examined to testify as witness to every piece of evidence---High Court had rightly disbelieved the evidence of such prosecution witness---Allegation was made that deceased was being suspected to have developed illicit relations at the house of accused without disclosing in the evidence the name or relationship of any person muchless a female relative of accused, being vague was not believable---Supreme Court declined to interfere in acquittal of accused by High Court---Appeal was dismissed.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 and Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985 ref.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court for Petitioner.

M. Irfan Malik, Additional P.-G. for the State.

Nemo for Respondents.

Date of hearing: 4th January, 2011.

SCMR 2011 SUPREME COURT 815 #

2011 SCMR 815

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan and Muhammad Qaim Jan Khan, JJ

GOHAR REHMAN---Petitioner

Versus

MUHAMMAD TAHIR and another---Respondents

Criminal Petition No. 7-Q of 2008, decided on 22nd April, 2009.

(On appeal from the judgment dated 22-2-2008 of the Peshawar High Court Peshawar passed in Criminal Miscellaneous No. 1338 of 2007).

(a) Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S. 302/34---Constitution of Pakistan, Art.185(3)---Qatl-e-amd---Cancellation of bail, refusal of---Trial in the case had commenced and seven witnesses had been examined---Supreme Court ordinarily would not interfere with the order of High Court relating to bail, particularly in a murder case when the trial was to commence so as to avoid discussion and remarks on the merits of the case---High Court had reached the conclusion of granting bail to accused with valid and sound reasonings, which were unexceptionable---Petition for leave to appeal was dismissed accordingly.

Haji Inayat-ul-Haq v. Said Muhammad Khan and another 1988 SCMR 1743; Muhammad Sharif v. Shafqat Hussain alias Sliaukat and another 1999 SCMR 338 and Muhammad Siddique v. Muhammad Abbas and another 1998 SCMR 284 ref.

(b) Constitution of Pakistan---

----Art. 185(3)---Criminal Procedure Code (V of 1898), S. 497---Penal Code (XLV of 1860), S. 302/34---Qatl-e-amd---Discretion of Supreme Court in bail matters, exercise of---Supreme Court ordinarily does not interfere with the order of High Court relating to bail, particularly in case of murder when trial is to commence so as to avoid discussion and remarks on the merits of the case.

Ehsan Akbar v. The State and 2 others 2007 SCMR 482 ref.

Kh. Muhammad Khan, Gara, Advocate Supreme Court for Petitioner.

Barrister M. Zahoor-ul-Haq, Advocate Supreme Court for Respondent No. 1.

Attaullah Khan Tangi, Advocate Supreme Court for Respondent No. 2.

Date of hearing: 22nd April, 2009.

SCMR 2011 SUPREME COURT 817 #

2011 SCMR 817

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Raja Fayyaz Ahmad, Asif Saeed Khan Khosa and Ghulam Rabbani, JJ

SUO MOTU CASE NO. 24 OF 2010: In the matter of

(Applications by Abdul Rasheed and others)

Human Rights Cases Nos. 57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P and 58118-K of 2010, decided on 11th March, 2011.

(Regarding corruption in Hajj arrangements in 2010)

Constitution of Pakistan---

----Arts. 25 & 184(3)---Civil service---Employment on contract after superannuation---Equality of citizens--Discrimination---Disciplinary Force---Supreme Court, in a matter under suo motu jurisdiction, had made observations against a functionary employed in disciplinary force, on contract after superannuation, regarding poor investigation of the case---While other such members of the said Force had been removed, retention of specified functionary, prima facie, seemed to be discriminatory i.e. against the provisions of Art: 25 of the Constitution, because if all of them were serving on contract basis and according to the authorities they were performing duties to the satisfaction, their services had been terminated but the specified functionary who was also a similarly placed person was continuing in office.

Moulvi Anwar-ul-Haq, Attorney-General for Pakistan, Dr. Salahuddin Mengal, A.-G. Balochistan, Asadullah Chamkani, A.-G. KPK, Syed Arshad Hussain Shah, Additional A.-G.-, KPK, Ghulam Dastgir, Chief Secretary KPK, Khwaja Haris Ahmed, A.-G. Punjab, Ch. Khadim Hussain Qaiser, Additional A.-G. Punjab, Nasir Khosa, Chief Secretary, Punjab, Abdul Fateh Malik, A.-G. Sindh, Raja Abdul Ghafoor, Advocate-on-Record, Ghulam Nabi Shah, Secretary Law, Iqbal Ahmed Durrani, Secy. S&G, Sindh, Muhammad Tayyab, Additional Secy. S&GAD and Tariq Pirzada, Commissioner, ICT on Court Notice.

Nemo for Members of Committee of Parliamentarians.

Nemo for Former Minister S&T.

Khurram Latif Khosa, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Former Minister Religious Affairs.

Shahzad Ahmed, JS Admn. (on behalf of Secretary) for M/o Religious Affairs.

Nemo for Former Secretary Religious Affairs.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court and Abdur Rauf Chaudhry, Estt. Secretary, Khalid Akhlaq Gillani, Additional Secy., M. Ijaz Ghani, Dy. Secy. and Muhammad Arshad, Dy. Secy. for Establishment Division.

Fauzi Zafar, ADPGA for NAB.

Syed Jawed Ali Bukhari, Additional D.-G., Incharge Investigation, Hussain Asghar, Director, M. Azam Khan, Director (Law), Khalid. Rasool, Dy. Director, FIA, Khalid Naeem, AD, FIA, Niamat Ali, AD, FIA, Liaqat Ali, S.-I. Police with Rao Shakeel, former D.-G. Hajj (in custody) for FIA.

M. Ikram Chaudhry, Advocate Supreme Court (in C.M.A. No.218 of 2011).

Nemo for Tour Operators.

SCMR 2011 SUPREME COURT 820 #

2011 SCMR 820

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Tariq Pervez, JJ

MUHAMMAD ASLAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 241 of 2008, decided on 3rd November, 2009.

(On appeal from judgment of Lahore High Court, Bahawalpur Bench dated 11-3-2008 passed in Criminal Appeal No. 276 of 2004).

(a) Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Seizure of narcotic---Appraisal of evidence---Benefit of doubt---Accused was found standing near ten sacks of narcotics at the time of raid---Despite the incident having occurred in a busy public place of a town where many private persons were available, Investigating Officer did not try to arrange any witness of the locality, who might have seen the accused in any manner linked with the said ten sacks of narcotics lying near the road in open space---None of the two prosecution witnesses of the recovery had stated that he had seen the accused either bringing the said sacks or carrying the same with him---Active possession of the sacks of the accused could not be proved merely by his standing near them---Accused had specifically deposed on oath in his statement recorded under S. 340(2), Cr. P. C. before Trial Court that the sacks of narcotics belonged to some other person who has slipped away on seeing the police raiding party and his statement might be true---Even the informer or any other person had not seen the accused loading or unloading the sacks containing narcotic substances from any vehicle or any other source---Knowledge of accused about the contents of these sacks and his ownership about the same was not even established on record---Delay of more than seven days in sending the samples of narcotics to Chemical Examiner for anlaysis was also not explained by the prosecution---Accused was acquitted on benefit of doubt in circumstances.

(b) Criminal trial---

----Appraisal of evidence---Benefit of doubt---Principle---Benefit of any reasonable doubt created in prosecution case is to be extended to the accused.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Nemo for the State.

Date of hearing: 3rd November, 2009.

SCMR 2011 SUPREME COURT 824 #

2011 SCMR 824

[Supreme Court of Pakistan]

Present: Tassuduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Rahmat Hussain Jafferi, JJ

AZMAT alias LAMBRU---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 461 of 2007, decided on 23rd October, 2009.

(On appeal from the judgment dated 21-2-2007 passed by the Lahore High Court, Lahore in Criminal Appeals Nos. 165-J, 166-J, 34-J and Murder Reference No. 319 of 2002).

Penal Code (XLV of 1860)---

----S. 302(b)/34---Qatl-e-amd---Appraisal of evidence---Sentence, reduction in---Concurrent findings of guilt and conviction of accused by the courts below were unexceptionable---Police station being 13 km away from the place of occurrence and the deceased being a Head Constable, delay of 24 hours in lodging the F.I.R. was strange and the explanation therefor might not be tenable---No crime empty was recovered from the spot--Despite the deceased had remained alive in the hospital for more than 33 days, Investigating Officer had only made one attempt to record his statement in the beginning and not thereafter---Conviction of accused was maintained, but his sentence of death was converted into imprisonment for life in circumstances.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Raja Shahid Mahmood Abbasi, D.P.-G., Punjab for the State.

Date of hearing: 23rd October, 2009.

SCMR 2011 SUPREME COURT 828 #

2011 SCMR 828

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Raja Fayyaz Ahmed, JJ

ABDUL RASHEED---Petitioner

Versus

THE STATE---Respondent

(On appeal against the judgment dated 28-3-2001 passed by Lahore High Court, Lahore in Criminal Appeal No. 109-J of 1996).

MUHAMMAD FAROOQ---Petitioner

Versus

THE STATE---Respondent

(On appeal against the judgment dated 21-2-2006 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur, in Criminal Appeal No. 128 of 2002 and Murder Reference No. 25 of 2002).

Criminal Miscellaneous Applications Nos. 86, 255 of 2007 in Jail Petitions Nos. 509, 100 of 2006, decided on 31st March, 2009.

Constitution of Pakistan---

----Art. 185(3)---Criminal trial---Sentence---Leave to appeal was granted only to examine the question of quantum of sentence in the given circumstances with direction that appeals should be prepared on the same record as only question of quantum of sentence was involved.

Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and other 1997 SCMR 1307 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioners (in both cases).

M. Siddiqui Khan Baloch, D.P.-G. for the State (in both cases).

SCMR 2011 SUPREME COURT 829 #

2011 SCMR 829

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed, Muhammad Qaim Jan Khan and Syed Zawwar Hussain Jaffery, JJ

THE STATE through Director-General Anti-Narcotics Force, Rawalpindi---Petitioner

Versus

SULTAN SHAH---Respondent

Criminal Petition No. 202 of 2008, decided on 19th June, 2009.

(Against the order dated 2-5-2008 passed by the High Court of Sindh, at Karachi in Criminal Bail No. 475 of 2008).

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Control of Narcotic Substances Act (XXV of 1997), S. 9---Constitution of Pakistan, Art. 185(3)---Possession of narcotic drugs---Bail, cancellation of---Notice issued to the accused as well as to the surety had not been served and were returned as unserved with the report that the accused was not found available at the given address---Accused had jumped his bail and had avoided the process of the court and law---Petition for leave to appeal was converted into appeal and by allowing the same the impugned order granting bail to accused was set aside in circumstances.

Niaz Ahmed Rathore, S.P.G. A.N.F. and Arshad Ali Ch., Advocate-on-Record for Petitioner.

Nemo for Respondent.

SCMR 2011 SUPREME COURT 830 #

2011 SCMR 830

[Supreme Court of Pakistan]

Present: Sayed Zuhid Hussain, Muhammad Sair Ali and Mahmood Akhtar Shahid Siddiqui, JJ

ABDUL HAYEE---Petitioner

Versus

THE STATE---Respondents

Criminal Petition No. 790-L of 2009, decided on 12th August, 2009.

(On appeal from the judgment dated 5-6-2009 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 5436 of 2009).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Constitution of Pakistan, Art: 185(3)---Cheating, forgery and using as of genuine a forged document---Bail, grant of---Case of further inquiry---Bona fide purchaser without notice---Unexecuted decree---Accused was alleged to have purchased land in question against which a decree had ,already been passed in favour of complainant---Plea raised by accused was that he was bona fide purchaser without notice of decree, for value from a person who purchased the land from person having registered sale deed in his favour---Validity---Contrary to accused complainant based his claim to land in question on unexecuted decree passed in year, 2001, in his favour---In absence of either execution/registration of decree or that of sale deed, complainant's claim to ownership needed further inquiry, adjudication and determination---Bail was granted.

Ch. Abdul Ghaffar, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner.

Nadeem-ud-Din Malik, Advocate Supreme Court and Mehmoodul-Islam, Advocate-on-Record for the Complainant.

Shabbir Lali, Additional Prosecutor-General and Abdul Ghafoor, S.-I. Police Station Township, Lahore for the State.

Date of hearing: 12th August, 2009.

SCMR 2011 SUPREME COURT 833 #

2011 SCMR 833

[Supreme Court of Pakistan]

Present: Ghulam Rabbani and Muhammad Moosa K. Leghari, JJ

PROVINCE OF SINDH and others---Petitioners

Versus

SAEED-UR-REHMAN---Respondent

Civil Petition No. 162-K of 2009, decided on 26th June, 2009.

(On appeal from the 12-12-2008. passed by the High Court of Sindh, Karachi in C.P. No. D-1101 of 2008).

Constitution of Pakistan---

----Art. 185(3)---Civil Service---Leave was sought to appeal against judgment whereby Division Bench of High Court had directed the petitioners to process, finalize and release pension of /respondent after fixation of pay in accordance with order passed by authorities--Order under which the civil servant was retired and intervening period was treated as duty, was holding the field---Counsel for the authorities stated that no steps were taken to recall said order---Inquiry Officer who conducted inquiry into the charges levelled against the civil servant had recommended his reinstatement with back-benefits; and the intervening period was treated as duty---Nothing could be brought to the notice of the court that recommendation of the Inquiry Officer was ill-founded---No other legal or factual error was pointed out---Petition for leave to appeal was refused.

Ansari Abdul Latif, Advocate Supreme Court for Petitioners.

Respondent in person.

SCMR 2011 SUPREME COURT 835 #

2011 SCMR 835

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Ghulam Rabbani, JJ

Dr. AZEEMUR REHMAN and others---Appellants

Versus

GOVERNMENT OF SINDH and others---Respondents

Civil Appeals Nos. 1233 to 1251 of 2005, decided on 28th April, 2009.

(On appeal from the judgment dated 7-4-2005 passed by the Sindh Service Tribunal, Karachi in Appeals Nos. 360, 361, 363 to 379/99, 6 to 2, 27 and 28 of 2000).

Civil Servants Act (LXXI of 1973)---

----S.8---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan, Art.212(3)---Seniority---Appeals having been dismissed by the Service Tribunal, civil servants had filed appeals before the Supreme Court---Advocate-General had submitted that the original seniority list was superseded, because certain persons had died and some of them had retired; and the seniority list needed modification/rectification---Advocate-General had added that appeals filed by the appellants against the impugned seniority list before the Departmental Authority, were not decided; and it would be in the interest of justice, if those appeals were decided in the first instance as these according to his instructions, were pending---Advocate-General, in circumstances, had submitted that Provincial Government would have no objection if the appeals were partly allowed and the impugned judgment to their extent was set aside---Appeals in circumstances, were allowed and the impugned judgment with regard to the findings qua the appellants were set aside and the competent Authority in the Department was directed to decide the pending appeals within six weeks of the receipt of the order, after hearing all concerned.

Appellants in person.

Muhammad Yousaf Leghari, A.-G. Sindh for Respondents Nos.1 and 2.

Ansari Abdul Latif, Advocate Supreme Court for Respondents Nos. 10, 12 and 14 to 17 (in all cases).

SCMR 2011 SUPREME COURT 837 #

2011 SCMR 837

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Asif Saeed Khan Khosa, JJ

ABDUL GHANI and others---Appellants

Versus

Mst. YASMEEN KHAN and others---Respondents

Civil Appeals Nos. 1171 and 1172 of 2001, decided on 9th March, 2011.

(On appeal from the judgment dated 10-5-2001 passed by the Lahore High Court, Lahore in R.F.As. Nos. 29 and 30 of 1991).

(a) National Registration Act (LVI of 1973)---

----S. 9---Age, determination of--- Probative value of National Identity Card---National identity card has got its probative value which carries sufficient weight to be considered for determining the age.

Razia Khatoon v. Roshan H. Nanji 1991 SCMR 840 ref.

(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 70---Documentary evidence---Mere oral assertion is not sufficient to rebut documentary evidence.

Akhtar Hussain Zaidi v. Muhammad Yaqinuddin 1988 SCMR 753 ref.

----S.9---Age---Determination of---National identity card has got its probative value which carries sufficient weight for determining the age--- Mere oral assertion is not sufficient to rebut documentary evidence---Documents pertaining to education record and passport which were never contested and rebutted were supporting documents.

Razia Khatoon v. Roshan H. Nanji 1991 SCMR 840 and Akhtar Hussain Zaidi v. Muhammad Yaqinuddin 1988 SCMR 753 ref.

(d) Words and phrases---

----"Void" and "voidable"-Distinction---Terms void and voidable are not interchangeable or synonymous and a line of distinction is to be drawn.

Chairman, Distt. Screening Committee v. Sharif Ahmed Hashmi PLD 1976 SC 258 ref.

(e) Contract Act (IX of 1972)---

----S. 11---Competence of minor to enter into contract---Principles.

Any contract or transaction entered into with minor was void ab initio for minor could not give consent to create any binding contract. Principle of estoppel was also inapplicable in minor's case. Transaction reflected in specified mutation sanctioned during minority of minor female was void ab initio for being unauthorized, therefore, on basis thereof, vendees named in such mutation did not acquire any right or title in land in question. No independent evidence of transaction of sale having been produced on basis whereof, mutations in questions, had been entered into and sanctioned.

Section 11 of the Contract Act, 1872 would make the minor incompetent to enter into any contract, therefore, contract by minor was void ab initio and not merely voidable. Such contract would have no existence in the eye of law and was incapable of satisfaction or confirmation. Law forbids enforcement of such transaction even if minor was to ratify the same after attaining majority.

No rights and liabilities could be attached to or arise out of void contract. Minor could not be burdened with liability of a void contract.

Muhammadan Law by Mulla S.362; Rahimuddin v. Abdul Malik Bhuyia PLD 1968 Dacca 801; Bibi Mukhtiar v. Amrezan PLD 1968 Pesh. 169; Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Atlas Industrial and Trading Corporation v. Jalil Asghar PLD 1970 Kar. 241; Sultan Textile Mills (Dar.) Ltd. v. Muhammad Yousuf Shamsi PLD 1972 Kar. 226; E. A. Evans v. Muhammad Ashraf PLD 1964 SC 536; S. Sibtain Fazli v. Star Film Distributors PLD 1964 SC 337; Injunctions in Holy Qur'an and the Sayings of the Holy Prophet (P.B.U.H.) Holy Qur'an S. IV. V. 34; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Fida Muhammad v. Muhammad Khan PLD 1985 SC 341; Govind Prasad v. Shanti Swarup AIR 1935 All. 778; Ghulam Hussain v. Ghous Bakhsh PLD 113 (W.P.) BJ 30; Safdar Ali v. Muhammad Malik 1995 CLC 1751; Allah Ditta v. Muhammad Azeem PLD 1953 BJ 1; Chairma, Distt. Screening Committee v. Sharif Ahmed Hashmi PLD 1976 SC 258; Karim Bakhsh v. Gul Rehman 1990 CLC 1200; Ma Hnit v. Hashim Ebrahim Meter AIR 1919 PC 129; Govind Ram v. Piran Ditta AIR 1935 Lah. 561; Firm Bhola Rain v. Bhagat Ram AIR 1927 Lah. 24 and Narendra Kumar Das v. Muhammad Babru PLD 1971 Dacca 281 ref.

(f) Constitution of Pakistan---

----Art. 185---Appeal to Supreme Court---Plea which was never seriously raised either before the Trial Court or High Court could not be raised before the Supreme Court at appellate stage.

(g) Transfer of Property Act (IV of 1882)---

----S. 41---Contract Act (IX of 1872), S.11---Attorney entering into contract on behalf of minor---No precautionary measures had been taken by purchaser of such property to see as to whether any authentic and genuine power of attorney was ever executed on behalf of the minor---Such purchaser could not take refuge behind the provisions as enumerated in S.41, Transfer of Property Act, 1882.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court, Roy M. Nawaz Kharl, Advocate Supreme Court, M. Aslam Malik, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellants.

Zaheer Ahmed Qadri, Advocate Supreme Court for Respondent No. 1.

Nemo for other Respondents.

Date of hearing: 9th March, 2011.

SCMR 2011 SUPREME COURT 848 #

2011 SCMR 848

[Supreme Court of Pakistan]

Present: Javed Iqbal, Jawwad S. Khawaja and Anwar Zaheer Jamali, JJ

N.-W.F.P. PUBLIC SERVICE COMMISSION and others---Appellants

Versus

MUHAMMAD ARIF and others---Respondents

Civil Appeals Nos. 40-P to 57-P of 2010 and C.P. No. 132-P of 2010, decided on 25th November, 2010.

(On appeal from the judgment dated 12-11-2009 passed by the Peshawer High Court, Peshawar in W.P. No. 2457 of 2009 and order dated 21-1-2010 passed by the Peshawar High Court, Abbottabad Bench in W.P. 474 of 2009):

(a) Constitution of Pakistan---

----Art. 185(3)---North-West Frontier Province Judicial Service Examination Rules, R.6---Civil Service---Candidates appearing for competitive examination for Provincial Management Service, in the present case, could not qualify the examination and took the plea that there was a provision under R.6 of N.-W.F.P. Judicial Service Examination Rules granting five grace marks and that the candidates who appeared for Provincial Management Service Examination should also be allowed. the same concession---Leave to appeal was granted by Supreme Court, keeping in view the fact, that when the rules were silent in, respect of the services of the Provincial Management Service relating to the grant, of grace marks whether the High Court was justified to extend the same benefit on consideration that as this concession was available in the judicial service, the same shall also be given to them.

(b) Civil Service---

---Competitive examination---Candidates appearing for competitive examination for Provincial Management Service could not qualify the examination and took the plea that five grace marks be granted to them as being allowed to the candidates for Provincial Judicial Service---Validity---Advertisement and syllabus revealed that no such provision for grant of grace marks was available---Prescribed syllabus for Competitive Examination for Provincial Management Service mentioned that no candidate shall be summoned for viva voce test unless he obtained at least, 30% marks in each optional paper, 40% marks in each compulsory paper and 50% marks in aggregate of the written portion of the examination---Syllabus did not provide the provision of granting grace marks to the candidate which was also made clear in general conditions in the advertisement---Criterion, qualification and terms/conditions for holding Competitive Examination for different categories could not be one and the same having its own peculiar characteristics---Candidates had no legal right whatsoever to demand for grace marks in the absence of any provisions of relevant rules or syllabus prescribed for examination of Provincial Management Service and no interference could have been made by the High Court in circumstances.

----Art. 25---Equal protection of law---Concept and scope---Reasonable classification which were not arbitrary or violative of doctrine of equality could not be questioned---Discrimination---Meanings and scope.

Article 25 of the Constitution enjoins that all citizens are equal before law and are entitled to equal protection of law, i.e., all persons subjected to a law should be treated alike under all circumstances and conditions both in privileges conferred and in the liabilities imposed. The equality should not be in terms of mathematical calculation and exactness. It must be amongst the equals. The equality has to be between persons who are placed in the same set of circumstances. The dominant ideal common to both the expressions is that of equal justice. The guarantee contained in this right is only that no person or class of persons shall be denied the same protection of law which is enjoyed by other persons or other classes in the circumstances. It must, however, be kept in view that though the persons similarly situated or in similar circumstances are to be treated in the same manner but the equality clause' particularly the provision about the equal protection of the law does not mean that all citizens shall be treated alike under all set of circumstances and conditions; both in respect of privileges conferred and liabilities imposed. Whatever else the expression 'equal protection of law' may mean it certainly does not mean equality of operation of legislation upon all citizens of the State. Equality of citizens does not mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities. The conception of equality before the law does not involve the idea of absolute equality among human beings which is a physical impossibility. The Article guarantees a similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform. It means that among equals the law should be equal and should be equally administered and that the like should be treated alike, and that there should be no denial of any special privilege by reason of birth, creed or the like and also equal subjection of all individuals and classes to the ordinary law, of the land. Classification which is not arbitrary, capricious or in violation of the doctrine of equality cannot be questioned. It is the basic requirement of law that all persons shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liability imposed.

Reasonable classification which is not arbitrary or violative of doctrine of equality cannot be questioned.

Discrimination means "making a distinction or difference between things; a distinction; a difference; a distinguishing mark or characteristic; the power of observing differences accurately, or of making exact distinctions; discernment. But discrimination against a group or an individual implies making an adverse distinction with regard to some benefit advantage or facility. Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context.

Saeed ud Din v. Secretary to Govt. of N.-W.F.P. 1990 CLC 8; Pak Petroleum Workers Union v. Ministry of Interior 1991 CLC 13; Sheoshankar v. M.P. State Govt. AIR 1951 Nag. 58; Gul Khan v. Govt. of Balochistan PLD 1989 Quetta 8; Muhammad Hussain v. Abdul Rashid PLD 1975 Lah. 1391; F.B. Ali v. State PLD 1975 SC 506; Mubarik Ali Khan v. Govt. of Punjab 1990 CLC 136; Zakaria v. Trustees of the Port of Karachi PLD 1968 Kar. 73; Mohd Mukhtar v. Special Tribunal PLD 1977 Lah. 524; Rifat Parveen v. Selection Committee Principal, Bolan Medical College PLD 1980 Quetta 10; Sheoshankar v. M.P. State Govt. AIR 1951 Nag. 58; Sheoshankar v. the State ILR 1951 Nag. 646; O. M. Parkash v. The State AIR 1955 All. 275; Balochistan Bar Association v. Govt. of Balochistan PLD 1991 Quetta 7; Jibendra Kishore Achharyya Chaudhory and 58 others v. The Province of West Pakistan and Secretary Finance and Revenue Depatt. Govt. of East Pakistan PLD 1957 SC 9; Golam Sarwar Mollan v. Election Tribunal PLD 1965 Dacca 86; Shirin Munir v. Government of Punjab PLD 1990 SC 295 and Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44 ref.

(d) Constitution of Pakistan---

---Art. 199L. Right to invoke Art.199 of the Constitution by an aggrieved person---Scope.

The right which is the foundation of an application under Article 199 of the Constitution is a personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable' right in existence, to give jurisdiction to the High Court in the matter. Unless whatever right personal or otherwise, on which the application is based is established, no order can be issued under Art.199.

Rifat Parveen v. Selection Committee Principal, Bolan Medical College PLD 1980 Quetta 10; Sheoshankar v. M.P. State Govt. AIR 1951 Nag. 58; Sheoshankar v. the State ILR 1951 Nag. 646; O. M. Parkash v. The State AIR 1955 All. 275; Balochistan Bar Association v. Govt. of Balochistan PLD 1991 Quetta 7; Jibendra Kishore Achharyya Chaudhory and 58 others v. The Province of West Pakistan and Secretary Finance and Revenue Depatt. Govt. of East Pakistan PLD 1957 SC 9; Golam Sarwar Mollan v. Election Tribunal PLD 1965 Dacca 86; Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44; Shirin Munir v. Government of Punjab PLD 1990 SC 295; Muntizma Committee v. Director, K.A. PLD 1992 Kar. 54; Mahmoona v. Ilam Din PLD 1984 Lah. 228; A.F. Farms and Industries v. Development Commr AIR 1953 Assam 155; Mahboob Khan v. Deputy Commissioner AIR 1953 Assam 145 and Dineshcharan v. State of MB AIR 1953 Madh-B 165 ref.

Syed Arshad Hussain, Additional A.-G. (KPK) for Appellants.

Muhammad Saeed Khan; Advocate Supreme Court for Respondent (in C.A. No. 40-P of 2010).

Abdul Samad Khan, Advocate Supreme Court for Respondents (in C.A. No. 51-P of 2010 and C.P. 132-P of 2010).

Date of hearing: 25th November, 2010.

SCMR 2011 SUPREME COURT 856 #

2011 SCMR 856

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed and Tariq Parvez, JJ

QAMAR-UZ-ZAMAN alias KALA---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 900 of 2009, decided on 3rd June, 2010.

(On appeal from the judgment dated 7-7-2009, passed by the Lahore High Court, Lahore in Criminal Appeal No. 242-J of 2004, Criminal Appeal No. 243-J of 2004 and Murder Reference No. 341 of 2004).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Presence of eye-witnesses at the scene of occurrence and their having witnessed the same was quite natural and undoubtful---Eye-witnesses had no enmity or any grudge against the accused to falsely involve him in the case---Promptly lodged F.I.R. had completely excluded the possibility of any deliberation or consultation on the part of the complainant before lodging the same---Ocular testimony was natural, straightforward, convincing and confidence-inspiring, which was fully corroborated by medical evidence---Mere inter se relations of the ocular witnesses with the deceased would not per se furnish any valid basis to discard their evidence---Both the courts below had found the accused guilty on correct appraisal of evidence rightly punished him with death in circumstances-Leave to appeal was declined to accused by Supreme Court accordingly.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Syed Ali Imran Shah, D.P.-G. for the State.

Date of hearing: 3rd June, 2010.

SCMR 2011 SUPREME COURT 863 #

2011 S C M R 863

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Ijaz-ul-Hassan and Zia Perwez, JJ

THE STATE through D.-G., A.N.F., Rawalpindi---Petitioner

Versus

MUHAMMAD SALEEM KHAN---Respondent

Criminal Petition No. 85 of 2009, decided on 25th June, 2009.

(On appeal from judgment dated 9-1-2009 of the High Court of Sindh, Karachi, passed in Criminal Bail Application No. 1547 of 2008 (S.B)).

Criminal Procedure Code (V of 1898)---

----S. 561-A---Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)---Constitution of Pakistan, Art. 185(3)---Possession of narcotic drugs---High Court, vide impugned judgment, had converted the bail application of the accused/respondent into petition for quashment of proceedings and allowed the same---F.I.R. as well as other material on record had revealed that accused was an employee of the Civil Aviation Authority, who happened to be on duty at the Airport at the relevant time---Mere fact that accused was standing close to the other accused, therefore, would not saddle him with the responsibility of abetment of commission of the alleged offence---No incriminating evidence was available against the accused---Impugned judgment was just and fair, to which no exception could be taken on hyper-technical grounds---Leave to appeal was declined to complainant accordingly.

Niaz Ahmed Rathore, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

Respondent in person.

SCMR 2011 SUPREME COURT 870 #

2011 SCMR 870

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Sayed Zahid Hussain and Mahmood Akhtar Shahid Siddiqui, JJ

SIKANDAR ZAMAN---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 1113-L of 2009, decided on 18th September, 2009

(On appeal against the order dated 27-7-2009 passed by Lahore High Court, Lahore in Criminal Miscellaneous No. 8382-B of 2009).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art. 185(3)---Dishonestly issuing a cheque---Bail, grant of---Direction given by High Court for conclusion of trial within three months had not been complied with---Dispute was between husband and wife---Offence alleged did not fall in the prohibitory clause of S. 497, Cr.P.C.---Supreme Court converted the petition into appeal and admitted the accused to bail in circumstances.

Saiful Haq Ziay, Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record for Petitioner.

Alamgir, Additional P.-G. for the State.

SCMR 2011 SUPREME COURT 872 #

2011 SCMR 872

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Raja Rayyaz Ahmed, JJ

MUHAMMAD NADEEM alias Deemi---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 86 of 2008, decided on 26th March, 2009.

(On appeal from judgment dated 8-5-2008 of Lahore High Court, Lahore passed in Criminal Appeal No. 107-J of 2003 and Murder Reference No. 821 of 2002).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Ocular testimony was duly supported by the recovery of dagger, medico-legal and post-mortem reports in addition to the statement of accused under S. 342, Cr.P.C.---Delay of 17 hours in lodging the F.I.R. was explained in the F.I.R. itself to the effect that everyone was busy at the hospital struggling for the life of the victim---Possibility of the complainant party arranging for the eye-witnesses during the said delay was altogether ruled out, because 'even if so, the occurrence having taken place in the city cricket ground, everything could have been arranged within minutes---Complainant had not involved any person by deliberations and brought about the single charge which was true and logical in every sense---Effective role had been attributed to the accused alone---Complainant had no enmity, whatsoever, for falsely implicating the accused, and thus nothing was unlawfully and maliciously gained through the delay in question---Recovery of dagger or its having been stained with blood or not, had become completely immaterial in view of the admission of occurrence in his statement under S. 342, Cr.P.C.---No right of private defence remained available to accused, the moment the dagger fell into his hands from the alleged assailant---Thus, not only that the accused had no right to attack the deceased, but had no justification to inflict as many as seven fatal dagger blows on the deceased---Circumstances were more akin to the prosecution version rather than to the defence version---Leave to appeal was refused to accused in circumstances.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Delay in lodging the F.I.R.---Effect---General rule---Delay by itself in lodging the F.I.R. is not material---Factors to be considered by the Courts are firstly, that such delay stands reasonably explained and secondly, that the prosecution has not derived any undue advantage through such delay.

----S. 302(b)---Appraisal of evidence---Crime weapon, recovery of---Utility---Recovery of crime weapon in a criminal case is not at all material, as it can only serve as a piece of supporting evidence---If case is proved by other evidence independently, recovery is not essential at all.

(d) Criminal Procedure Code (V of 1898)---

----S. 342---Examination of accused---Nature and scope---Statement of accused under S. 342, Cr.P.C. is not necessarily to be accepted as a whole, because it cannot be equated with a confessional statement---Statement, where right of private defence is claimed, cannot be dubbed as confessional statement.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Mian Asif Mumtaz, D.P.-G. for the State.

Date of hearing: 26th March, 2009.

SCMR 2011 SUPREME COURT 877 #

2011 SCMR 877

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Sayed Zahid Hussain, JJ

MUHAMMAD AKRAM RAHI and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 64 to 66 of 2005, decided on 9th September, 2009.

(On appeal from the judgment dated 23-4-2002 in Criminal Appeals Nos. 43-J, 108-J, 425 of 1998 and Murder Reference No. 198-T passed by the Lahore High Court, Lahore).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)- Qatl-e-amd---Leave to appeal was granted by Supreme Court to re-evaluate the evidence in order to ascertain the validity of the identification parade and accusation against the accused, as well as to examine the contentions of the complainant in depth for enhancement of sentence.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appraisal of evidence---Identification of accused in identification parade being merely a corroborative piece of evidence, would be immaterial in the presence of other convincing evidence of identification---Complainant had not only identified the accused in identification parade but also during the trial, who had remained in the house of the complainant for a reasonable time---No question of any doubt qua identification of accused by the complainant would, therefore, arise---No enmity whatsoever of the complainant with the accused had been alleged---Forthright, confidence-inspiring and trustworthy ocular testimony furnished by three eye-witnesses including the complainant, was duly corroborated by medical evidence and incriminating recovery---Guilt of accused, thus, had been established to the hilt---Death sentence of one accused had been converted into imprisonment for life by High Court on cogent reasons, as admittedly fatal injury on the person of the deceased was never attributed to him---Besides, sufficient incriminating material was lacking to prove the factum of common object and common intention---Prosecution evidence had not shown any preconcert and pre-arrangement for the commission of the murder---No uncalled for leniency was given to the said accused by High Court in reducing his death sentence in circumstances---Co-accused had caused fatal injury to the deceased and his case, therefore, was distinguishable from that of the said accused---Appeals were dismissed accordingly.

Muhammad Afzal v. State 1982 SCMR 129; King v. Christie 1914 AC 545; State v. Farman Hussain PLD 1995 SC 1; Lal Pasand v. The State PLD 1981 SC 142; Abdul Sattar v. The State 1981 SCMR 678 and Muhammad Yousuf Zia v. The State PLD 1988 Kar. 539 ref.

----S. 302(b)---Qatl-e-amd---Appraisal of evidence-Absence of identification parade---Effect---Where identity of accused is proved by other convincing direct or circumstantial evidence, the absence of identification test proceedings will be inmaterial.

Muhammad Afzal v. State 1982 SCMR 129 and King v. Christie 1914 AC 545 ref.

(d) Qanun-e-Shahadat (10 of 1984)---

----Art. 22---Identification parade---Necessity of---Identification parade becomes essential and inevitable only when a witness gets a momentary glimpse' of the accused and he claims that he would be able to identify the accused.

State v. Farman Hussain PLD 1995 SC 1 ref.

(e) Penal Code (XLV of 1860)---

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-e-amd---Appraisal of evidence---Identification parade, importance of---Prosecution witness can even identify the accused in court and it is not the legal requirement that identification parade must be held in all the cases.

Lal Pasand v. The State PLD 1981 SC 142; Abdul Sattar v. The State 1981 SCMR 678 and Muhammad Yousuf Zia v. The State PLD 1988 Kar. 539 ref.

Sardar Muhammad Siddique Khan, Advocate Supreme Court for Appellants (in Criminal Appeal No. 64 of 2005).

M.A. Zafar, Advocate Supreme Court for Appellants (in Criminal Appeals Nos. 65 and 66 of 2005).

Khawaja Sultan Ahmed, Senior Advocate Supreme Court for Respondent No. 1 (in Criminal Appeal No. 65 of 2005).

Nemo for Respondents Nos. 1 and 2 (in Criminal Appeal No. 66 of 2005).

Raja Shahid Mahmood Abbasi, D.P.-G for the State (in all cases).

Date of hearing: 9th September, 2009.

SCMR 2011 SUPREME COURT 888 #

2011 SCMR 888

[Supreme Court of Pakistan]

Present: Tassuduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Rahmat Hussain Jafferi, JJ

MUHAMMAD SADIQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 290 of 2007, decided on 7th October, 2009.

(On appeal from the judgment dated 20-4-2006 of the Lahore High Court, Lahore passed in Criminal Appeal No. 93 of 2001 and Murder Reference No. 124 of 2001).

(a) Penal Code (XLV of 1860)---

---Ss. 302(b) & 324---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd and attempt to commit Qatl-e-amd---Leave to appeal was granted to accused to consider the contention that he being a weak and infirm person of 70 years of age at the time of incident, was not able to actively participate in the commission of the offence, who even in his jail petition had mentioned his age as 80 years, which was an extenuating circumstance for reducing his death sentence.

(b) Penal Code (XLV of 1860)---

---Ss. 302(b) & 324---Qatl-e-amd and attempt to commit Qatl-e-amd---Appraisal of evidence---Occurrence had taken place in day-light---Complainant was brother of the accused and father of both the victims and he could not be expected to have substituted the accused for the real culprit---Dispute over partition of land was going on between the parties---Record did not suggest that the firearm injury suffered by the injured witness at the hands of accused was self-suffered---Promptly lodged F.I.R. had given the complete picture of the incident, which was fully supported by medical evidence---Presence of accused at the place of occurrence with a loaded pistol with which he had fired three successive shots at his nephews on a day of religious festivities, had shown his determination and callousness---No reason was available to allow benefit of lesser penalty of life imprisonment to accused on the ground of his old age---Conviction and sentence of accused were upheld in circumstances.

Mst. Bevi v. Ghulam Shabbir and another 1980 SCMR 859; Muhammad Aslam Shah v. The State 1993 PCr.LJ 704 and Fazalur Rehman v. The State 1997 PCr.LJ 175 ref.

Amir Gul v. The State 1981 SCMR 182 rel.

M. Zaman Bhatti, Advocate Supreme Court for the Appellant.

Raja Shahid Mahmood Abbasi, D.P.-G. Punjab for the State.

Date of hearing: 7th October, 2009.

SCMR 2011 SUPREME COURT 892 #

2011 SCMR 892

[Supreme Court of Pakistan]

Present: Ghulam Rabbani and Muhammad Moosa K. Leghari, JJ

HABIB BANK LTD.---Petitioner

Versus

RAMAN ALI HEMANI and another---Respondents

Civil Petition No. 434-K of 2009, decided on 1st July, 2009.

(On appeal against the judgment dated 26-2-2009 passed by High Court of Sindh at Karachi in C.P. No. D-2355 of 2008).

Constitution of Pakistan---

----Arts. 199 & 185(3)---Constitutional petition before High Court---Maintanablity---Bank employee---Pursuant to notification dated 26-2-2004, petitioner bank was privatized and its control was transferred to a private entity---Respondent filed constitutional petition on 25-11-2008 seeking payment of service dues to which he was not entitled---Contention of petitioner/bank was that since bank was privatized in the year 2004, it was not amenable to constitutional jurisdiction of High Court; and that constitutional petition was not maintainable---Leave to appeal was granted to consider law point raised by the petitioner; with direction to decide the matter on the available record.

Shahid Anwar Bajwa, Advocate Supreme Court and Abdul Saeed Khan Ghori, Advocate-on-Record for Petitioner.

Nemo for Respondents.

SCMR 2011 SUPREME COURT 893 #

2011 SCMR 893

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and

Rahmat Hussain Jafferi, JJ

MUHAMMAD YAQOOB and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 116 of 2007 and Jail Petition No. 13 of 2006, decided on 14th October, 2009.

(On appeal against the judgment dated 16-1-2006 passed by Lahore High Court, Multan Bench in Criminal Appeal No. 74 of 2000).

Penal Code (XLV of 1860)---

----S. 302/149---Qatl-e-amd---Appraisal of evidence---F.I.R. had been lodged within two hours of the occurrence naming specifically all the accused with a definite role assigned to each one of them-Blood relations of eye-witnesses with the deceased would not erode their credibility, because they were residents of the house of occurrence, had received injuries, had no reason for false implication of accused and were consistent on the role attributed to each accused---Medical evidence had corroborated the ocular testimony not only with regard to the presence of eye-witnesses, but also with regard to the injuries sustained by both the deceased---Convictions of accused were, therefore, maintained---Eight accused, as per prosecution story, armed with sharp edged weapons had attacked the complainant party causing injuries to the deceased and in such a moment of commotion and shock it was difficult to say with exactitude as to who had caused the fatal injury---Ocular evidence had been disbelieved qua three accused, who had been acquitted by Trial Court---Sentence of imprisonment for life of one accused was upheld, but sentence of death of other accused was converted into imprisonment for life in circumstances.

Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 and Shahzada Khan v. The State 1984 SCMR 1161 ref.

M. Zaman Bhatti, Advocate Supreme Court for Appellants.

Raja Shahid Mehmood Abbasi, D.P.-G. for the State.

SCMR 2011 SUPREME COURT 898 #

2011 SCMR 898

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Asif Saeed Khan Khosa, JJ

GOVERNMENT OF NORTH-WEST FRONTIER PROVINCE through Secretary, Agriculture, Livestock and Cooperatives Department, Peshawar and others---Appellants

Versus

ABDULLAH KHAN and others---Respondents

Civil Appeals Nos. 834 to 837 of 2010, decided on 1st March, 2011.

(On appeal from the judgment dated 1-12-2009 of the Peshawar High Court, Peshawar passed in Review Petitions Nos. 64, 68, 69 and 66 of 2009 in Writ Petitions Nos. 1645 of 2007, 29, 84 and 43 of 2009).

North-West Frontier Province Employees (Regularization of Services) Act (XVI of 2009)---

----S. 2(1)(aa)---"Contract appointment"---Meaning---Appointments in the present case, were made in accordance with the prescribed method of recruitment and through the Department Selection Committee---Cases of such employees did not attract the definition of "contract appointment" contained in S.2(1)(aa) of the North-West Frontier Province Employees (Regularization of Services) Act, 2009---Employer/department had failed to produce anything to establish that employees had in fact been appointed for any "project post"; all that was produced before the High Court were some salary slips and pay-rolls of such employees, but such documents, could not be accepted as proper substitute for positive and definite proof of the nature of the appointment or employment.

Qazi Muhammad Anwar, Advocate Supreme Court for Appellants (in all cases).

Gul Zarin Kiani, Advocate Supreme Court with Waseem-ud-Din Khattak, Advocate Supreme Court for Respondents (in all cases).

Date of hearing: 1st March, 2011.

SCMR 2011 SUPREME COURT 901 #

2011 SCMR 901

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmed, JJ

RAB NAWAZ---Petitioner

Versus

THE STATE---Respondent

J. P. No. 80 of 2008, decided on 8th April, 2009.

(On appeal from the judgment dated 24-3-2008 passed by the Lahore High Court, Rawalpindi Bench Rawalpindi in M.R. 273 of 2001, Criminal Appeal No. 39 of 2001 and Criminal Appeal No. 48 of 2001).

Constitution of Pakistan---

----Art.l85(3)---Criminal trial---Petitioner had contended that on the basis of vague and sketchy evidence, no conviction could have been awarded; that the evidence which had come on record had not been appreciated in its true perspective; that statement of prosecution witness had been ignored by the court below and that statement of said prosecution witness which related to the factum of recovery, had not been properly appreciated---Leave to appeal was granted by the Supreme Court on the points mentioned in the petition in the interest of safe administration of justice.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Muhammad Siddiqui Baloch, D.P-G. for the State.

SCMR 2011 SUPREME COURT 902 #

2011 SCMR 902

[Supreme Court of Pakistan]

Present: Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

MANZOOR HUSSAIN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Petitions Nos. 5-K to 6-K of 2008, decided on 28th November, 2008.

(On appeal against the order dated 30-1-2008 passed by High Court of Sindh, Circuit Court, Hyderabad in Criminal Bail Applications Nos. 531 and 420 of 2006).

(a) Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302/34--Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Bail, grant of---F.I.R. itself had not explained the presence of both the accused in the room, where the murder was allegedly committed by the main accused by firing on the chest of the deceased with his revolver---Statements of prosecution witnesses recorded under S. 164, Cr.P. C. did not support the sequence of events taking place before the occurrence---Bail could not be refused on the basis of vicarious liability unless the accused were shown through positive evidence to have played a role in the crime---Main accused had already been granted bail in the case---Bail was allowed to accused in circumstances.

(b) Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302/34---Qatl-e-amd---Bail---Vicarious liability---Principle---Bail cannot be refused on the basis of vicarious liability, unless it is shown through positive evidence that indeed accused had played a role in the crime in question.

Mazhar Ali B. Chohan, Advocate-on-Record for Petitioners.

Shahadat Awan, Prosecutor-General Sindh for Respondent.

M. Ashraf Kazi, Senior Advocate Supreme Court for the Complainant.

SCMR 2011 SUPREME COURT 905 #

2011 SCMR 905

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

MUHAMMAD YASEEN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 300 of 2007, decided on 3rd May, 2010.

(On appeal from the judgment dated 16-5-2006 of the Lahore High Court, Lahore passed in Criminal Appeal No. 92-J of 2001 and Murder Reference No. 135 of 2001).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art., 185(3)---Qatl-e-amd---Leave to appeal was granted to accused by Supreme Court to reappraise the entire evidence in detail of the safe administration of criminal justice.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appraisal of evidence---Occurrence had taken place in broad-daylight on 'a thoroughfare when the deceased was on his way back to his house after purchasing ice---Story of substitution propounded on behalf of accused, therefore, could not be accepted---Courts in the absence of any corroboration were expected to follow the rule of abundant care and caution in the matter of sentence---No resident of the lane of occurrence had appeared and supported the prosecution version---Prosecution had failed to prove the motive for the offence---Accused had fired only one shot and decamped from the place of incident---Ocular witnesses were at a considerable distance from the place of murder---Conviction of accused was upheld, but his sentence of death was converted into imprisonment for life in circumstances.

Mehmood Rashid and others v. The State 2003 SCMR 581 ref.

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, award of---Rule of caution---Courts in the absence of any corroboration are expected to follow the rule of abundant care and caution, in the matter of sentence.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Mian Asif Mumtaz, D.P.-G., Punjab for the State.

Date of hearing: 3rd May, 2010.

SCMR 2011 SUPREME COURT 908 #

2011 SCMR 908

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed and Mahmood Akhtar Shahid Siddiqui, JJ

THE STATE through Director-General, ANF---Petitioner

Versus

SAID AHMED---Respondent

Criminal Petition No. 105 of 2009, decided on 11th June, 2009.

(Against the judgment dated 3-2-2009 of the Peshawar High Court, Peshawar passed in Criminal Miscellaneous No. 1618 of 2008).

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Constitution of Pakistan, Art. 185(3)---Possession of narcotic drugs---Cancellation of bail, refusal of---Impugned order passed by High Court granting bail to accused did not suffer from any impropriety and the same was unexceptionable---Discretion vesting in the court to extend concession of bail had been properly exercised in the light of the well settled principles governing such matters---Petition for leave to appeal had no merit and the same was dismissed accordingly.

Raja Niaz Ahmad Rathore, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

Nemo for Respondent.

SCMR 2011 SUPREME COURT 910 #

2011 SCMR 910

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Jawwad S. Khawaja and Rahmat Hussain Jafferi, JJ

LIAQAT ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 148 of 2008 Out of Jail Petition No. 186 of 2007, decided on 12th May, 2010.

(On appeal from the judgment of the Lahore High Court, Lahore dated 21-12-2006 passed in Criminal Appeal No. 121 of 2002 and Murder Reference No. 115 of 2002).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Single injury sustained by the deceased at right side of his head was attributed to the two nominated accused and the Trial Court as well as the High Court without properly attending to the question of liability vis-a-vis the injury, had held the accused guilty---Leave to appeal was, therefore, granted to accused to re-appraise the evidence to ascertain the question of his guilt in the case.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appraisal of evidence---Ocular testimony was not consistent with medical evidence---Occurrence in view of medical evidence appeared to have taken place in the dark of night than in broad-daylight as alleged by the prosecution---Basing the conviction and capital punishment of accused on the evidence of eye-witnesses found to be untruthful by the courts below, was contrary to the settled principles and constituted miscarriage of justice---Falsity of the ocular witnesses had led to the conclusion that the occurrence was un-witnessed---Two most credible witnesses of the crime, who could have testified as to the time and circumstances of the occurrence, were neither associated with the investigation nor examined in the court, reason for which could not be explained---No crime empties, blood, brain matter or pellets were gathered from the site---Guns recovered from the accused and his acquitted brother co-accused, were not sent to the Forensic Science Laboratory for examination and testing---Close relationship of the eye-witnesses with the deceased, although was not by itself sufficient to discard their testimony, yet had strongly suggested the same to be tainted one---Circumstances had negated the probative value of the ocular evidence---Accused was acquitted in circumstances.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Syed Ali Imran, D.P.-G. for the State.

Date of hearing: 12th May, 2010.

SCMR 2011 SUPREME COURT 916 #

2011 SCMR 916

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J, Ch. Ijaz Ahmed and Jawwad S. Khawaja, JJ

TAUQIR AHMED---Petitioner

Versus

TAUQIR AHMED and others---Respondents

Criminal Petition No. 262 of 2009, decided on 9th June, 2009.

(Against the judgment dated 5-5-2009 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No. 13 of 2001).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Appeal against. acquittal---No violation of the principles laid down by Supreme Court in the case of Ghulam Sikandar reported as "PLD 1985 SC 11" could be pointed out warranting interference in the impugned judgment of acquittal---Courts below on the basis of appraisal of incriminating material available on record, had concluded that the accused were not guilty for the commission of the offence, and such conclusion was not subject to any interference in the absence of the aforesaid violation---Leave to appeal was declined by Supreme Court to complainant accordingly.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 ref.

Manzoor Hussain Mughal, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Petitioner.

Niaz Ahmed Rathore, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Respondents.

SCMR 2011 SUPREME COURT 917 #

2011 SCMR 917

[Supreme Court of Pakistan]

Present: Sayed Zahid Hussain and Muhammad Sair Ali, JJ

MUHAMMAD SHAKEEL---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 348 of 2008, decided on 20th May, 2009.

(On appeal from the judgment dated 4-11-2008 of the Lahore High Court, Rawalpindi Bench passed in Criminal Appeal No. 60-J of 2402 and Murder Reference No. 129 of 2002).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Ocular testimony was consistent and having been corroborated by other evidence, could not be discredited by the relationship of the eye-witnesses with the deceased---Crime weapon whether "Chhura" or "Chhuri" had been used in the commission of the offence and was .reported to be stained with human blood---Defence version brought forth by the accused in his statement recorded under S. 342, Cr.P.C. was not substantiated by him---Medical evidence had supported the ocular account of occurrence---Accused had been rightly convicted and sentenced for having committed the murder of the deceased---Leave to appeal was refused to accused accordingly.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Mian Asif Mumtaz, D.P.-G., Punjab for the State.

SCMR 2011 SUPREME COURT 921 #

2011 SCMR 921

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

AZIZ AHMED and others---Petitioners

Versus

MUHAMMAD RAMZAN and others---Respondents

Civil Petitions Nos. 1222-L, 1223-L, 1227-L, 1228-L and 1461-L of 2006, decided on 21st May, 2009.

(Against the judgment dated 19-4-2006 of the Lahore High Court, Lahore, passed in R.F.As. No. 462 of 2004, 31, 36, 61 and.62 of 2005).

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O.XXIX, R.1 & O.XXXII, R.1---Constitution of Pakistan, Art. 185(3)---Specific performance of agreement to sell---Agreement on behalf of minor---New plea, raising of---Suit was filed by a company seeking specific performance of agreement to sell on the ground that defendants did not perform their part of contract--- Trial Court as well as Appellate Court concurrently decreed the suit---Plea raised by defendants was that one of the co-owners was minor and agreement to sell was signed by his mother on his behalf without being declared as guardian furthermore the suit was filed without any resolution of plaintiff company---Validity---Both the Courts below rightly declared that agreement on behalf of minor had been executed by his mother who was de facto guardian---Mother of the minor was subsequently appointed de jure guardian of the minor by Guardian Judge, especially for the purpose of sale of land in question in favour of plaintiff company and Guardian Judge even granted permission to the mother with respect to sale in question---Defendants could not point out any illegality. in concurrent findings nor could it be shown that the findings were based on misreading or non-reading of any part of evidence---No issue was framed at trial regarding authority to file suit by plaintiff company nor any such issue had ever been claimed by defendants---Supreme Court declined to interfere in concurrent judgments and decrees passed by two courts below---Leave to appeal was refused.

Shahazad Shaukat, Advocate Supreme Court and Mahmud-ul-Islam, Advocate-on-Record for Petitioners (in C.Ps. Nos. 1222-L and 1223-L of 2006).

Nemo for Petitioners (in C.Ps. Nos. 1227-L and 1228-L of 2006).

Ch. Khurshid Ahmad, Advocate Supreme Court for Petitioner (in C.P. No. 1461-L of 2006).

Ch. Khurshid Ahmed, Advocate Supreme Court for Respondent No.1 (in C.P. No. 1222-L of 2006).

Ch. Khurshid Ahmed, Advocate Supreme Court for Respondent No.2 (in C.P. No. 1223-L of 2006).

Sajjad Mehmood Sh., Advocate Supreme Court (on behalf of Syed Mansoor Ali Shah, Advocate Supreme Court) and M.A. Qureshi, Advocate-on-Record for Respondent , No. 2 (in C.P. No. 1222-L of 2006).

Sajjad Mehmood Sh., Advocate Supreme Court (on behalf of Syed Mansoor Ali Shah, Advocate Supreme Court) and M.A. Qureshi, Advocate-on-Record for Respondent No. 1 (in C.P. No. 1223-L of 2006).

Sajjad Mehmood Sh., Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondent No. 1 (in C.P. No. 1227-L of 2006).

Ch. Khurshid Ahmed, Advocate Supreme Court for Respondent No. 1 (in C.P. No. 1228-L of 2006).

Sajjad Mehmood Sh., Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondent No. 1 (in C.P. 1461-L of 2006).

SCMR 2011 SUPREME COURT 925 #

2011 SCMR 925

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Rahmat Hussain Jafferi and Tariq Pervez Khan, JJ

MUHAMMAD AKRAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 272 of 2009, decided on 5th January, 2010.

(On appeal from the judgment dated 18-5-2004 of the Lahore High Court, Lahore passed in Criminal Appeal No. 923 of 2002 and Murder Reference No. 63-T of 2000).

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appraisal of evidence---Complainant was fully supported by the injured witness, whose presence on the spot could not be doubted because of injuries on his person---None of the said two witnesses had any enmity with the accused to falsely charge him in the case, where five persons had been killed---Accused was named in the F.I.R. to be armed with a hatchet and he had caused a hatchet blow to the deceased on the left side of his shoulder---Medical evidence had corroborated the ocular testimony---Abscondence of accused for more than one year had further corroborated the eye-witness account---Prosecution had brought home the charges against the accused, whose sentence of death had already been converted into imprisonment for life by the High Court---Appeal of accused was dismissed in circumstances.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Syed Ali Imran, D.P.-G., Punjab for the State.

Date of hearing: 5th January, 2010.

SCMR 2011 SUPREME COURT 929 #

2011 SCMR 929

[Supreme Court of Pakistan]

Present: Zia Perwez, Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

ALI SHER---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 391 of 2008 in Criminal Petition No. 71-K of 2008, decided on 18th November, 2008.

(a) Criminal Procedure Code (V of 1898)---

----S. 514---Forefeiture of bond---Imposition of fine---Principles---Imposition of fine upon sureties is to be regulated keeping in view the facts and circumstances of each case---Where the surety has made genuine efforts to produce the accused before the Trial Court but could only do so after some time, then a lenient view has to be taken---However, where the surety has totally failed to produce the accused in court, then courts have to be strict in imposition of fine.

(b) Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of bond---Imposition of penalty---Principles---In dealing with the cases of sureties who are in default, a balance has to be held between undue leniency which might lead to abuse of the procedure and interference with the course of justice in a larger number of cases, and on the other hand undue severity which might lead to unwillingness on the part of neighbours and friends to come forward and give bail for accused persons.

Dildar and another v. The State PLD 1963 SC 47 ref.

(b) Criminal Procedure Code (V of 1898)---

----S. 514---Penal Code (XLV of 1860), Ss. 324/353/148/149---Constitution of Pakistan, Art. 185(3)---Attempt to commit qatl-e-amd---Forfeiture of bond---Appellant had stood surety for four accused persons in the sum of Rs. 100,000 each, who had absconded during the trial and Trial Court had imposed a fine on him to the extent of full amount of surety---No inquiry had been made before the Trial Court in assessing the carelessness of the appellant in his efforts to produce the accused in court; hence, it could be inferred that perhaps the appellant did make such efforts, but failed as the accused had absconded and shifted to some unknown place---Appellant had produced one accused whereas another accused was arrested in some other case, but he had totally failed to produce two accused for which he had stood surety---Consequently, in case of accused whom the appellant had produced in court fine was reduced to Rs. 25,000 and in case of accused arrested in another case fine was reduced to Rs. 75,000, but the fine of Rs.100,000 each was maintained in case of the other two accused whom the appellant had failed to produce at all before the Trial Court---Appeal was disposed of accordingly.

Dildar and another v. The State PLD 1963 SC 47; Muhammad Ali and others v. The State 2007 SCMR 575 and Muhammad Aslam and another v. The State 2004 SC 211 ref.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Appellant.

Shahadat Awan, Prosecutor-General Sindh for Respondent.

SCMR 2011 SUPREME COURT 932 #

2011 SCMR 932

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Khilji Arif Hussain and Asif Saeed Khan Khosa, JJ

IMRAN alias MANU---Appellant

Versus

THE STATE-Respondent

Criminal Appeal No. 300 of 2004, decided on 1st June, 2010.

(On appeal against the judgment dated 26-3-2002 passed by Lahore High Court, Bahawalpur Bench in Criminal Appeals Nos. 45 to 48 of 2000).

Penal Code (XLV of 1860)---

---Ss. 302(b)/34 & 397/34---West Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-e-amd, robbery with attempt to cause death, possessing unlicensed firearm---Appraisal of evidence---Occurrence was unseen--No crime empty having been secured from the spot, pistol recovered from accused was not connected with the offence---Identification parade held 26 days after the arrest of accused was of no value, particularly in presence of an objection by the accused to have been shown to the prosecution witnesses in the police station--Even otherwise, identification parade had only been held with regard to the last seen evidence and not regarding the main criminal transaction of murder---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Accused was acquitted in circumstances.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

M. Siddique Khan Baloch, D.P.-G. for the State.

SCMR 2011 SUPREME COURT 935 #

2011 SCMR 935

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk, Muhammad Moosa K. Leghari, Sheikh Hakim Ali and Ghulam Rabbani, JJ

Ch. MUHAMMAD ASGHAR---Petitioner

Versus

ELECTION TRIBUNAL OF UC-45, ARIFWALA and others---Respondents

Civil Petition No. 1953-L of 2008, decided on 17th June, 2009.

(On appeal against the judgment dated 3-12-2008 passed by Lahore High Court, Lahore in I.C.A. No. 424 of 2008).

Punjab Local Government Ordinance (XIII of 2001)---

----S. 152---Punjab Local Government Elections Rules, 2005, Rr. 14 & 65---Election of Nazim and Naib Nazim---Annulment of election of returned candidate for seat' of Nazim by Election Tribunal on account of educational disqualification-Holding of election to seat of Nazim alone---Validity---On a seat becoming vacant on account of such disqualification, then such disqualification not being notorious, fresh elections had to be held for both seats together i.e., Nazim and Naib Nazim---Such mandate of law had already been given effect to as elections of both seats had taken place.

Mian Ahmad Saeed and others v. Election Tribunal for Kasur at Okara and 7 others 2003 SCMR 1611 ref.

Ch. Abdul Ghaffar, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

SCMR 2011 SUPREME COURT 937 #

2011 SCMR 937

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Muhammad Sair Ali, JJ

AKHTAR ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 197 of 2009, decided on 18th November, 2009.

(On appeal from the judgment dated 13-10-2008 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Criminal Appeal No. 184-J of 2003 and Murder Reference No. 39 of 2003).

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appraisal of evidence---Accused had been apprehended immediately after the occurrence by the prosecution witnesses, who had absolutely no motive to implicate him in the case---Defence plea taken by accused besides being an afterthought was unfounded---Concurrent findings of the Trial Court and the Appellate Court were not open to any exception to be taken by Supreme Court---Appeal was dismissed accordingly.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Shahid Mehmood Abbasi, D.P-G. Punjab for the State.

Date of hearing: 18th November, 2009.

SCMR 2011 SUPREME COURT 939 #

2011 SCMR 939

[Supreme Court of Pakistan]

Present: Zia Perwez and Sarmad Jalal Osmany, JJ

ISLAMIC REPUBLIC OF PAKISTAN and others---Petitioner

Versus

AKHTAR ALI KHAN---Respondent

C.P.L.A. No. 95-K of 2009, decided on 28th April, 2009.

(On appeal from order of High Court of Sindh, Karachi dated 18-12-2008 passed in High Court Appeal No. 179 of 2007).

Fatal Accident Act (XIII of 1855)---

----S.1---Constitution of Pakistan, Art. 185(3)---Fatal accident---Suit for damages---Suit had been decreed, defendant filed High Court appeal, which was dismissed---Witness produced by the defendant had clearly admitted that she was not aware whether deceased was wearing a helmet or not---Forums below had concluded that it was a case of rash and negligent driving---Truck of the defendant, in fact had, dashed against the stationary motorcycle resulting in death of deceased for which defendant was entirely responsible---Supreme Court declined interference and refused the leave to appeal.

Umar Hayat Sindhu, Deputy Attorney-General and A.S.K. Ghori, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 29th April, 2009.

SCMR 2011 SUPREME COURT 941 #

2011 SCMR 941

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Nasir-ul-Mulk and Mian Saqib Nisar, JJ

ABDUL MAJEED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 551 of 2009, decided on 5th January, 2011.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 4-11-2008 passed in Criminal Appeal No. 373 of 2002).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted to accused to reappraise the evidence, as the Trial Court as well as the High Court had disbelieved the same evidence on which his co-accused had been acquitted.

(b) Penal Code (XLV of 1860)---

----S. 302(b)--Qatl-e-amd---Appraisal of evidence---Eye-witnesses had not been able to establish their presence at the scene of occurrence and the crime had remained un-witnessed---Prosecution was bound to prove its case against the accused beyond reasonable doubt throughout and this burden would never shift to the accused---Strangulation to death of the wife of accused in his house might be a circumstance to be taken into account along with other prosecution evidence, but this by itself was not sufficient to establish his guilt connecting him to the crime---Presence of accused in the house at the time of murder of his wife was also not established by the prosecution---No positive evidence being available against the accused, he could not be convicted on the presumption that since the murder of his wife had taken place in his house it could only be him and no other who had murdered the deceased---Accused was acquitted in circumstances.

The State v. Muhammad Hanif 1992 SCMR 2047; Bashir Ahmed v. The State PLJ 1974 Cr.C. (Lahore) 460 and Wazir and others v. The State (PLD 1960 (W.P.) Kar. 674 ref.

Afzal Hussain Shah v. The State 1991 PCr.LJ 113 distinguished.

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Burden of proof---Burden of the prosecution to prove its case against the accused beyond reasonable doubt---Such burden remains throughout and does not shift to the accused, who is only burdened to prove a defence plea, if he takes one.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Ch. Zubair Ahmed Farooq, Additional P.-G. Punjab for the State.

Date of hearing: 14th December, 2010.

SCMR 2011 SUPREME COURT 944 #

2011 SCMR 944

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

ABDUL RASHID KHAN---Petitioner

Versus

REGISTRAR, BAHAUDDIN ZAKARIA UNIVERSITY, MULTAN and others---Respondents

C.P.L.A. No. 557 of 2008, decided on 7th October, 2009.

(On appeal from judgment of Lahore High Court, Multan Bench, Multan dated 2-4-2008 passed in ICA No. 19 of 2008).

Constitution of Pakistan---

----Arts. 185 (3) & 199---Constitutional jurisdiction of High Court---Educational institution---Non-statutory rules---Scope---Petitioner was employee of University and invoked constitutional jurisdiction of High Court for implementation of office order in his favour with regard to vice versa transfer---Constitutional petition and Intra-Court Appeal filed by petitioner were concurrently dismissed by High Court---Validity---University had no statutory rules, therefore, petitioner had no remedy before High Court under Art.199 of the Constitution---Supreme Court declined to take any exception to concurrent findings of two forums below---Leave to appeal was refused.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Ijaz Hussain Sulery v. Registrar 1999 SCMR 2381 and University of the Punjab v. Sardar Ali 1992 SCMR 1093 fol.

Rao Fazal Khan Akhtar, Advocate Supreme Court for Petitioner.

Malik Muhammad Rafiq, Advocate Supreme Court for Respondents.

Date of hearing: 7th October, 2009.

SCMR 2011 SUPREME COURT 947 #

2011 SCMR 947

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Anwar Zaheer Jamali, JJ

ASHIQ HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 43 out of Jail Petition No. 811 of 2009, decided on 11th February, 2011.

(On appeal from the judgment of the Lahore High Court, Multan Bench, dated 17-6-2009 passed in Criminal Appeal No. 84 of 2004 and Murder Reference No. 126 of 2004).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Sentence---Contention of the petitioner/convicted accused was that occurrence had taken place in the mid of the night in the house of the deceased, when the complainant and other inmates of the house were asleep and that the other co-accused were either acquitted or given lesser punishment on the same evidence---Leave to appeal was granted by Supreme Court to reappraise the evidence in circumstances.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Ahmed Raza Gillani, D.P.-G. for the State.

SCMR 2011 SUPREME COURT 948 #

2011 SCMR 948

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Raja Fayyaz Ahmed, Jawwad S. Khawaja, Rahmat Hussain Jafferi and Tariq Pervez, JJ

RIAZ HANIF RAHI---Applicant

Versus

SAEED-UZ-ZAMAN SIDDIQUI, and 4 others---Respondents

Criminal Original Petition No. 12 of 2010, decided on 10th May, 2010.

(Contempt application under section 3/5 of Contempt of Court Ordinance 2003 read with Article 204 of the Constitution of Islamic Republic of Pakistan, 1973).

(a) Contempt of Court Ordinance (IV of 2003)---

---Ss. 3/5---Constitution of Pakistan, Art. 204---Contempt of Court-On the basis of a news item published in a Daily newspaper dated 16-1-2010, petitioner had sought initiation of contempt of court proceedings against the respondents, being of the opinion that the statement as attributed to respondent, former Chief Justice of Pakistan, and as published in the newspaper showing that .the Judiciary which had taken oath under the PCO of General Pervez Musharraf in the year 2000 and Judiciary which took oath under the second PCO of the year 2007 were morally at par, as there was no distinction between the two sets of Judiciary---Such statement was argued by the petitioner to be derogatory and to malign the Judiciary---Said respondent was further alleged to have doubted the legality of seven Member Bench Order dated 3-11-2007 of Supreme Court, which was an aspersion in respect of the matter being sub judice in the Supreme Court---Press clipping produced before the Court appeared to be a press report, which was in fact some extract of the interview, which did not reveal either the question or the entire answer---No opinion could, therefore, be formed as to what was the exact contest in which the replies were given by the respondent---To. make fair comment about a Judge or a judgment is the right of every citizen as long as the object of making comment is with bona fide intention---Fair comments by an individual are based on his view point, which cannot be made cognizable under any law---Where an opinion is not derogatory to Judiciary and view point does not ridicule the Judiciary, all fair comments are rather healthy signs by public deposing trust and owning the judicial system---Statement made by the respondent (if at all made) that the first Judiciary and the 'second Judiciary during the regime of General Pervez Musharraf were at par with each other, was again an impression and opinion of a person, which in no manner had lowered down or shown disrespect to the Judiciary---Petition was dismissed accordingly.

(b) Contempt of Court Ordinance (IV of 2003)---

----Ss. 3/5---Constitution of Pakistan, Art. 204---Contempt of Court---Fair comments and opinion not cognizable---Making of fair comments about a Judge or a judgment is the right of every citizen as long as the same are bonafidely made---Fair comments by an individual are based on his view point which cannot be made cognizable under any law--Opinion not derogatory to Judiciary and the view point not ridiculing it, are rather healthy signs by public deposing trust and owning its judicial system.

Applicant in person.

Nemo for Respondents.

SCMR 2011 SUPREME COURT 951 #

2011 SCMR 951

[Supreme Court of Pakistan]

Present. Khalil-ur-Rehman Ramday, Nasir-ul-Mulk and Anwar Zaheer Jamali, JJ

Mst. SULTANA BIBI alias RUBI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 359 of 2002, decided on 28th September, 2009.

(On appeal from the judgment dated 10-1-2002 of the Lahore High Court, Lahore passed in Criminal Appeal No. 150-L of 1998 and Murder Reference No.. 195-J of 1998).

Penal Code (XLV of 1860)---

----S. 302(b)---Appraisal of evidence---Accused could not be believed to have buried the pieces of the dead body of the deceased into a room of her house after having killed him somewhere else, where even the complainant and 10/12 other persons were also living---No conceivable explanation in this regard was forthcoming---No memorandum had been prepared with respect to the recovery of the said pieces of the dead body from the said room at the pointation of accused---Recovery of the letters allegedly written to the accused by her male co-accused after digging the floor of a room of her house was not a reliable piece of evidence ,.as she had no reason to preserve those letters under the soil and the same could not have been found in a legible form---Even the said letters were not proved at the trial according to law---Although complainant claimed during trial that he knew of the illicit relations between the accused and her co-accused, yet he never mentioned such relationship in his applications submitted to the police for registration of the case---Accused was acquitted in circumstances.

M. Zaman Bhatti, Advocate Supreme Court and Malik Muhammad Kabir, Advocate Supreme Court for Appellant.

Syed Ali Imran, D.P.-G. for the State.

SCMR 2011 SUPREME COURT 954 #

2011 SCMR 954

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Khilji Arif Hussain, JJ

QEEMAT GUL---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 137-P of 2009, decided on 24th February, 2010.

(On appeal from the judgment of the Peshawar High Court, Peshawar dated 11-8-2009 passed in Criminal Miscellaneous Bail Petition No. 1135 of 2009).

Penal Code (XLV of 1860)---

----Ss. 324/353/148/149---Control of Narcotic Substances Act (XXV of 1997), S.9---Constitution of Pakistan, Art. 185(3)---Attempt to commit qatl-e-amd and possession of narcotic drugs---Conversion of petition from leave to appeal into appeal---Three of accused persons travelling in vehicle in question received firearm injuries and one of them was killed---Police party escaped completely unhurt notwithstanding the allegation that they fired in self-defence---Vehicle, admittedly was severely damaged in, the accident---Vehicle had gone out of control after its driver was hit in the firing---Despite the serious accident, the petitioner was not hurt and no firearm was recovered, from him---Petitioner had been in detention since July, 2009 and was entitled to bail in circumstance---Petition was converted into appeal and was allowed---Accused would be released on bail, in circumstances.

Noor Alam Khan, Advocate Supreme Court for Petitioner.

Qaiser Rasheed, Additional A.-G. for the State.

Date of hearing: 24th February, 2010.

SCMR 2011 SUPREME COURT 956 #

2011 SCMR 956

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Mahmood Akhtar Shahid Siddiqui, JJ

Messrs BLACK GOLD IND.---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.P. No. 1236-L of 2007, decided on 17th June, 2010.

(On appeal against the judgment dated 5-3-2007 passed by Lahore High Court, Lahore in W.P. No. 747 of 2007)..

Constitution of Pakistan---

----Art. 185(3)---Release of pay order---Counsel for the petitioner had stated that matter in issue already stood conclusively decided and no case was pending against the petitioner on the issue which came before the High Court and that despite final decision of the matter petitioner's pay order remained in the custody of respondents for the reasons that he had not deposited the Bank Guarantee in order to obtain release of the pay order---Held, in absence of a live issue, respondents would release the pay order deposited by the petitioner, without obtaining a corresponding Bank Guarantee---In case the matter remains still pending, petitioner would remain bound to comply with the terms of impugned judgment of High Court.

Mian Abdul Ghaffar, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Nemo for Respondents.

SCMR 2011 SUPREME COURT 958 #

2011 SCMR 958

[Supreme Court of Pakistan]

Present: Ghulam Rabbani and Muhammad Moosa K. Leghari, JJ

ANWAR SAJID---Petitioner

Versus

ABDUL RASHID KHAN and another---Respondents

Civil Petition No. 596-K of 2007, decided on 26th June, 2009.

(On appeal from the order dated 7-8-2007 passed by High Court of Sindh, Karachi in H.C.A. No. 136 of 2002.).

Specific Relief Act (I of 1877)---

----S. 12---Constitution of Pakistan, Art.185(3)---Suit for specific performance of agreement of sale---Dismissal of suit---Leave to appeal was sought against the judgment passed by High Court, whereby appeal of the petitioner assailing dismissal of his suit for specific performance qua the suit property, was dismissed---Remaining part of amount of consideration was to be paid up to specified date by the petitioner, but he failed to pay the same even after extended date and time---Counsel for the petitioner took the plea that since the respondent was bound to show to him the documents ready on the cut off date before, the concerned officer, but he having failed to do so, petitioner could not be held responsible to have not performed his part of contract---Plea of counsel for the petitioner, could not be accepted, as petitioner, in the first place, had to stand on his own legs and to show his bona fide that on the stipulated date he was himself present before concerned officer ready with money payable to the other side abiding by the terms and conditions of contract arrived at between the parties, but he failed to do that---Two concurrent findings being against the petitioner, his petition for leave to appeal failed.

Abdul Qadir Khan, Advocate Supreme Court and Abdul Aziz Khan, Advocate-on-Record for Petitioner.

Raja Qureshi, Advocate Supreme Court and Abdul Waheed Siddiqui, Advocate Supreme Court for Respondent No. 1.

SCMR 2011 SUPREME COURT 959 #

2011 SCMR 959

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Nasir-ul-Mulk and Tariq Pervez, JJ

WORLDCALL TELECOM LIMITED---Petitioner

Versus

PAKISTAN TELECOMMUNICATION AUTHORITY through Chairman, Islamabad---Respondent

Civil Petition No. 1098 of 2010, decided on 1st July, 2010.

(On appeal from the Judgment dated 26-3-2010 of the Lahore High Court, Rawalpindi Bench passed in FAO No. 10 of 2008).

Civil Procedure Code (V of 1908)---

----O. XLI, R.19---Constitution of Pakistan, Art.185(3)---Dismissal of application for re-admission of appeal dismissed for default---Names of two counsel were duly printed in the cause list, but no one appeared before the court---Even after dismissal of appeal in default no efforts were made to enquire about the fate of the case---On coming to know about the dismissal of appeal and after obtaining certified copy of order of the High Court, they kept quiet for another 20 days without offering delay of each day for not approaching the court within period of thirty days as stipulated under the Limitation Act, 1908---Facts had revealed that the petitioner had not been pursuing the remedy diligently as no immediate steps were taken for getting the appeal re-admitted after obtaining the certified copy of order---Limitation would create right in favour of the other side and law always would favour those who were vigilant and not those who were negligent in pursuing their remedy---No exception in circumstances could be taken against order of the High Court---Petition for leave to appeal was dismissed.

Seth Shivrattan G. Mohatta and another v. Messrs Mohammadi Steamship Co. Ltd. PLD 1965 SC 669 ref.

Mian Abdul Ghaffar, Advocate Supreme Court for Petitioner.

Nemo for Respondent:

SCMR 2011 SUPREME COURT 962 #

2011 SCMR 962

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Sair Ali and Ghulam Rabbani, JJ

REFERENCE NO. 1 OF 2011: In re

(REFERENCE BY THE PRESIDENT OF THE ISLAMIC REPUBLIC OF PAKISTAN UNDER ARTICLE 186 OF THE CONSTITUTION TO REVISITTHE CASE OF ZULFIQAR ALI BHUTTO REPORTED AS PLD 1979 SC 38 AND 53)

Reference No. 1 of 2011, decided on 21st April, 2011.

Constitution of Pakistan---

----Art.186---Advisory jurisdiction of the Supreme Court---Reference by the President of Pakistan---Questions forwarded in continuation of the Reference for opinion of the Supreme Court were that: Whether the decision of the Lahore High Court as well as the Supreme Court of Pakistan in the murder trial against Shaheed Zulfiqar Ali Bhutto meets the requirements of fundamental rights as guaranteed under Article 4, sub-Articles (1) & (2)(a), Article 8, Article 9, Article 10A/due process, Article 14, Article 25 of the Constitution, if it does not, its effect and consequences; whether the conviction leading to execution of Shaheed Zulfiqar Ali Bhutto could be termed as a decision of the Supreme Court binding on all other courts being based upon or enunciating the principle of law in terms of Article.189 of the Constitution, if not, its effect and consequences; whether in the peculiar circumstances of the case awarding and maintaining of the death sentence was justified or it could amount to deliberate murder keeping in view the glaring bias against Shaheed Zulfiqar Ali Bhutto; whether' the decision in the case of murder trial against Shaheed Zulfiqar Ali Bhutto fulfils the requirement of Islamic laws as codified in the Holy Qur'an and the Sunnah of Holy Prophet (SAW) if so, whether present case is covered by doctrine of repentance specifically mentioned in the Suras of Holy Quran; Sura Al-Nisa: Verses 17 & 18, Sura Al-Baqara: Verses 159, 160 and 222, Sura Al-Maida: Verse 39, Sura Al-Aaraaf. Verse 153, Sura Al-Nehal: Verse 119, Sura Al-Taha: Verse 82 as well as Sunan Ibn-e-Maaja, Chapter 171, Hadith No.395; what are effects and consequences of doctrine Re: Repentance and whether on the basis of conclusions arrived at and inferences drawn from the evidence/material in the case an order for conviction and sentence against Shaheed Zulfiqar Ali Bhutto could have been recorded---Supreme Court, in view of the importance of the Presidential Reference appointed senior advocates/jurists as amicus curiae and observed that President Supreme Court Bar Association and Attorney General for Pakistan and the Advocates General of all the Provinces shall also appear and assist the Supreme Court---Original record of the trial of the case was requisitioned from the High Court, enabling the counsel for Referring Authority to obtain copies of the same, if need be, for preparation of arguments, copies whereof shall also be supplied by him to all the other advocates.

Dr. Babar Awan, Senior Advocate Supreme Court on behalf of President.

SCMR 2011 SUPREME COURT 965 #

2011 SCMR 965

[Supreme Court of Pakistan]

Present: Zia Perwez, Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

ABDUL REHMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 103-K of 2008, decided on 24th December, 2008.

(On appeal from the judgment dated 26-11-2008 of the High Court of Sindh, Circuit Court, Hyderabad passed in Criminal Appeal No. D-258 of 2006).

Control of Narcotic Substances Act (XXV of 1997)---

----S. 9---Constitution of Pakistan, Art. 185(3)---Sentence, reduction in---Petitioner/accused was convicted and sentenced to suffer imprisonment for 14 years with fine---Counsel for the petitioner had stated that he would not press the petition on merits, however his only grievance was with regard to the quantum of sentence of the petitioner---Prosecutor-General in view of the facts that the petitioner was a first time offender and not habitual criminal conceded to the reduction of sentence---Validity---No previous record of conviction of the petitioner in any offence was on record---Recovery effected was `Charas' as pointed out by the counsel, which was distinct from heroin---Case, in circumstances called for lenient view---While converting the petition into appeal, same was partly allowed---Sentence and conviction of appellant/petitioner was reduced to five years' R.I. with benefit of S.382-B, Cr.P. C., accordingly.

Niazud Din v. The State 2007 SCMR 206 ref.

Mahmood A. Qureshi, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioner.

Shahadat Awan, P.-G., Sindh for the. State.

SCMR 2011 SUPREME COURT 967 #

2011 SCMR 967

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

COLLECTOR OF CUSTOMS, LAHORE and others---Appellants

Versus

Messrs SHAFIQ TRADERS and another---Respondents

Civil Appeals Nos. 282 and 283 of 2010, decided on 1st April, 2011:

(On appeal against the judgments dated 24-5-2007 passed by Lahore High Court, Lahore in Writ Petitions Nos. 6420 and 6440 of 2006).

Customs Act (IV of 1969)---

----S. 81(2)-Passing of final assessment order by Additional Director Valuation during period extended at his proposal by Collector---Validity---Prerequisites for such extension being existence of exceptional circumstances and recording thereof by Collector---Neither Director in his proposal had referred to exceptional circumstances nor Collector had recorded such circumstances for extending time---Factual premise for exercise of power to extend time in terms of S.81(2) of Customs Act, 1969 was non-existent-Impugned final order was set aside in circumstances.

Izharul Haq, Advocate Supreme Court for Appellants.

Shehzada Mazhar, Advocate Supreme Court for Respondents.

SCMR 2011 SUPREME COURT 971 #

2011 SCMR 971

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Jawwad S. Khawaja, JJ

FAISAL MEHMOOD---Petitioner

Versus

THE STATE-Respondent

Jail Petition No. 507 of 2009, decided on 19th January, 2010.

(On appeal from the judgment and order of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 9-6-2009 passed in Criminal Appeal No. 465 of 2004, M.R. No. 762 of 2004).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Accused had been convicted and sentenced to death on six counts for having murdered his step-in other and her children of tender age---No eye-witness of the occurrence on record---Prosecution case was based on the extra judicial confession of the accused and the last seen evidence---Leave to appeal was granted to accused by Supreme Court to examine whether the evidence produced by prosecution was adequate to maintain his conviction.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Syed Ali Imran Shah, Dy. P.-G., Punjab for the State.

SCMR 2011 SUPREME COURT 972 #

2011 SCMR 972

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Nasir-ul-Mulk and Tariq Pervez, JJ

RAB NAWAZ AHMED---Petitioner

Versus

Mst. HASINA IQBAL and another---Respondents

Civil Petition No. 1024 of 2010, decided on 1st July, 2010.

(On appeal from the judgment of the Peshawar High Court, Abbottabad Bench dated 21-4-2010 passed in W.P. No. 4 of 2009).

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S.14---Constitution of Pakistan, Art.185(3)---Suit for recovery of amount of dower-Family Court decreed the suit filed by the plaintiff (wife) but Appellate Court set aside judgment and decree of the Family Court, holding that plaintiff was not entitled to recover amount of dower as defendant (husband) had alienated half of the share of his property in favour of the plaintiff---High Court, exercising its constitutional jurisdiction set aside finding of the Appellate Court---Validity---Defendant had failed to establish that 1/2 share of his house, which originally belonged to his father and which he had agreed to transfer in the name of the plaintiff in lieu of dower amount, had been transferred by him in favour of the plaintiff---Defendant could not produce on record any document in support of his claim---No case having been made out for grant of leave petition was dismissed.

Khalid Rehman Qureshi, Advocate Supreme Court along with Asif Mehmood, cousin of Petitioner for Petitioner.

Nemo for Respondents.

SCMR 2011 SUPREME COURT 974 #

2011 SCMR 974

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Khilji Arif Hussain and Asif Saeed Khan Khosa, JJ

GHULAM NABI---Appellant

Versus

THE STATE---Respondent

Criminal M.A. No. 554 of 2009 in Criminal Appeal No. 80 of 2009, decided on 12th August, 2010.

(On appeal against the judgment dated 28-5-2008 passed by Lahore High Court, Lahore in Criminal Appeal No. 364-J of 2002.).

Criminal Procedure Code (V of 1898)---

----S. 345(2)---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Compromise---All the legal heirs of the deceased had pardoned. the accused in the name of Allah Almighty---Accused at the time of occurrence was less than 20 years of age---Compromise appeared to be voluntary and effected to promote harmony between the families---Application for allowing compromise between the parties in the case was accepted by Supreme Court in circumstances and the accused was acquitted of the charge accordingly.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Mian Asif Mumtaz, D.P.-G. for Respondent.

SCMR 2011 SUPREME COURT 977 #

2011 SCMR 977

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Mahmood Akhtar Shahid Siddiqui, JJ

CENTRAL BOARD OF REVENUE (now F.B.R.) and another---Petitioners

Versus

Messrs RECKITT BENCKISER PAKISTAN LTD. and another---Respondents

Civil Petition No. 869 of 2009, decided on 30th March, 2011.

(On appeal from the judgment of the High Court of Siudh dated 24-2-2009 passed in C.P. No.D-608 of 2007).

(a) Sales Tax Act (VII of 1990)---

----Ss.2(18), 30, 45-A, 47-A---General Clauses Act (X of 1897), S.21---Alternative Dispute Resolution Committee, recommendations of--Disposal of assessee's appeal by Appellate Tribunal in terms of such recommendations already accepted by Board of Revenue---Issuance of show-cause notice to assessee by Board of Revenue in exercise of its powers under S. 45-A of Sales Tax Act, 1990 read with S. 21 of General Clauses Act, 1897 to re-examine its order accepting such recommendations---Validity---Board had power to examine decision or order of an officer of Inland Revenue, which according to S. 2(18) read with S. 30 of Sales Tax Act, 1990 would not include Board itself---Board had no authority to examine legality or propriety of its own orders---Powers under S. 21 of General Clauses Act, 1897 for being general in nature could not be exercised by an authority for recalling orders passed in quasi judicial capacity---Provisions of S. 21 of General Clauses Act, 1897 could not be invoked in presence of S.45-A of Sales Tax Act, 1990---Board under S. 47-A of Sales Tax Act, 1990 had discretion not to appoint such Committee and could withhold its approval---Board had consciously appointed such Committee and accepted its recommendations, which had been duly incorporated in order of Tribunal---Board after such exercise could not re-open entire issue---Impugned show-cause was set aside in circumstances.

(b) General Clauses Act (X of 1897)---

----S.21---Order passed by an authority in quasi judicial capacity---Powers of authority to recall such order under S.21 of General Clauses Act, 1897---Scope---Provisions of S.21 of General Clauses Act, 1897 for being general in nature could not be invoked for recalling such order.

Asif Wardag, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioners.

Makhdoom Ali Khan, Senior Advocate Supreme Court for Respondents.

Date of hearing: 30th March, 2011.

SCMR 2011 SUPREME COURT 982 #

2011 SCMR 982

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

THE STATE through Collector of Customs---Petitioner

Versus

BASHIR KHAN---Respondent

Criminal Petition No. 330 of 2008, decided on 14th January, 2010.

(On appeal from the judgment dated 1-7-2008 passed by Peshawar High Court Criminal Appeal No. 177 of 2006).

Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Constitution of Pakistan, Art.185(3)---Possession of narcotic---Acquittal of accused---Trial Court convicted and sentenced accused, but High Court acquitted him of the charge---Petition for leave to appeal to Supreme Court being barred by 14 days, petitioner had filed appeal for condonation of such delay for the reasons that the documents for filing appeal were mixed in some other cases---Grounds mentioned in the application for condonation of delay was not recognized under the law to be a ground for condonation of delay---Justice demanded that in such like cases, delay should not be condoned because, it otherwise, would become a precedent; and at the same time accused would have to suffer, not on account of his own fault, but on account of act mentioned in the application of counsel for the petitioner.

Munawar Hussain v. The State 1993 SCMR 785; Fakhar-ud-Din v. Fazal Karim 1999 SCMR 795 and Abdullah Jan v. State 2003 SCMR 1063 ref.

Raja Abdul Ghafoor, Advocate Supreme Court/Advocate-on-Record and Najeeb Abbasi, Collector Customs, N.-W.F.P. for Petitioner.

Noor Alam Khan, Advocate Supreme Court with Bashir Khan in person for Respondent.

Naveed Akhtar, Additional A.-G., N.-W.F.P., Abdul Sattar Khattak, S.H.O. and Mirza Khan, S.-I. on Court Notice.

SCMR 2011 SUPREME COURT 984 #

2011 S C M R 984

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

GUL BADSHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 195 of 2010, decided on 20th July, 2010.

(On appeal from the judgment dated 28-5-2009 of the Lahore High Court, Rawalpindi Bench passed in CSR No. 6-N of 2006 and Criminal Appeal No. 135 of 2006).

(a) Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Constitution of Pakistan, Art. 185(3)---Transporting narcotic drugs---Leave to appeal was granted to accused only on the question of quantum of sentence being appropriate punishment awarded to him or that he could have been punished to imprisonment for life having the effect of deterrence as well.

(b) Control of Narcotic Substances Act (XXXV of 1997)---

----S. 9(c)---Transporting narcotic drugs---Appraisal of evidence---Sentence, reduction in---Huge quantity of narcotics had been recovered from secret cavities of the truck loaded with bricks being driven by the accused---Concurrent finding of the two courts below holding the accused guilty was affirmed---However, the fact that the illicit substance was concealed in the secret cavities of the vehicle had suggested that the accused might not be aware in this regard, which could be considered as a mitigating circumstance in his favour--Conviction of accused was consequently maintained, but his sentence was reduced from death to imprisonment for life, without the benefit of S.382-B, Cr. P. C.

Sahibzada and another v. The State 1991 SCMR 895; Nur Hussain v. The State 1993 SCMR 1608 and Zahoor Ahmad Awan v. The State 1997 SCMR 543 rel.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Shahid Mehmood Abbasi, D.P.-G., Punjab for the State.

Date of hearing: 20th July, 2010.

SCMR 2011 SUPREME COURT 986 #

2011 SCMR 986

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Tariq Parvez, JJ

Mst. ZULAIKHAN BIBI through LRs and others---Appellants

Versus

Mst. ROSHAN JAN and others---Respondents

Civil Appeal No. 353 of 2005, decided on 16th March, 2011.

(On appeal against the judgment dated 20-3-2003 passed by Lahore High Court, Lahore in Civil Revision No. 297 of 1995).

Contract Act (IX of 1872)---

----S. 17---`Fraud'---Definition---Fraud vitiates all solemn acts and any instrument, deed, or judgment, or decree obtained through fraud is a nullity in the eye of law and can be questioned at any time so much so that they can be ignored altogether by any court of law before whom they are produced in any proceedings---Question of fraud is never purely a question of law---Principles.

Muhammad Younus Khan v. Government of N.-W.F.P. 1993 SCMR 618 and Abdul Wahid v. Mst. Zamrut PLD 1967 SC 153 ref.

Ihsanul Haq Chaudhry, Advocate Supreme Court for Appellants.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court for Respondents.

SCMR 2011 SUPREME COURT 994 #

2011 SCMR 994

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Rahmat Hussain Jafferi, JJ

GHULAM RASOOL---Appellant

Versus

SECRETARY, GOVERNMENT OF PAKISTAN, MINISTRY OF DEFENCE and others---Respondents

Civil Appeal No. 228 of 2003, decided on 22nd April, 2010.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad dated 16-1-2003 passed in Appeal No. 68(R) CS of 2001).

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---General Clauses Act (X of 1897), S. 21---Constitution of Pakistan, Art. 212(3)---Sanitary Inspector in Cantonment Board absorbed permanently as Food Inspector---Reversion of Food Inspector to post of Sanitary Inspector after he worked on a higher post of Food Inspector for four years---Dismissal of appellant's appeal by Service Tribunal---Validity---Supreme Court granted leave to appeal to consider questions as to whether a civil servant after absorption and promotion to a higher grade and having worked against such post for four years, could be reversed to lower post; whether principle of locus poenitentiae would attract in the case, whether any change in rules or policy could have retrospective effect, and, whether a civil servant could be reverted to a post where reduction in pay would become obvious.

2004 SCMR 1864 rel.

(b) Cantonments Pure Food Act (XVI of 1966)---

----S. 15---Service Tribunals Act (LXX of 1973), S. 4---General Clauses Act (X of 1897), S. 21 ---Constitution of Pakistan, Art. 212---Appeal---Reversion to lower post after working four years on higher post---Sanitary Inspector in Cantonment Board absorbed on permanent basis as Food Inspector by order of Executive Officer dated 15-12- 1996 after completing probation period---Letter of Executive Officer addressed to Director-General, Military Lands and Cantonments Department through Director Military Lands and Cantonments informing him about such absorption of appellant with a request to delete his name from seniority list of Sanitary Inspectors---Deletion of appellant's name from such list by order of Director dated 25-8-1998---Order of Ministry of Defence dated 4-10-2000 annulling appellant's absorption on the ground that only Director as appointing authority had power to do so, but not the Executive Officer---Dismissal of appellant's appeal by Service Tribunal---Validity---Absorption could not be equated with appointment or promotion---Appellant's absorption was not a fresh appointment---Appellant's absorption had been made with implied, if not expressed, approval of Director being competent authority---Effect of accepting Director as appointing authority would be that Ministry of Defence was not competent to issue impugned order---Principle of locus poenitentiae would attract to present case as appellant having been initially appointed on trial basis on recommendations of a committee and having completed trial period had been absorbed against an existing vacancy---Relevant authority had accepted such absorption by deleting appellant's name from Seniority List of Sanitary Inspectors---Supreme Court set aside impugned judgment of Tribunal and order of Ministry of Defence.

Kh. Saeed-ul-Zafar, Advocate Supreme Court for Appellant.

Ex pare for Respondents Nos. 1 and 2.

Altaf Illahi Sheikh, Senior Advocate Supreme Court for Respondent No. 3.

Date of hearing: 22nd April, 2010.

SCMR 2011 SUPREME COURT 998 #

2011 SCMR 998

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Sardar Muhammad Aslam, JJ

RAEES-UD-DIN---Petitioner

Versus

NASREEN ANWAR and others---Respondents

C.P. No. 673 of 2007, decided on 30th June, 2009.

(On appeal from the order dated 16-5-2007 passed by the Peshawar High Court, Abbottabad Bench, in C.M. Nos. 1 and 208 of 2004).

(a) Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), S. 114, O.XXVI, R. 9 & O.XLVII, R. 1---Constitution of Pakistan, Art. 185(3)---Suit for possession---Demarcation of suit land through Local Commission---Report of Local Commission showing suit land encroached upon by defendant to be 6 marlas---Decree of Trial Court in favour of plaintiff to extent of 4 marlas passed on basis of such report set aside by Appellate Court-Judgment of High Court in revision restoring decree of Trial Court---Review petition to High Court by plaintiff for granting him additional 2 marlas of land---Order of ex parte proceedings against defendant and acceptance of review petition by High Court ex parte---Application by defendant for setting aside order of ex parte proceedings dismissed by High Court---Validity---Defendant had not challenged judgment of High Court passed in revision, which had attained finality to extent of decree for possession of 4 marlas of land to plaintiff---Defendant had not challenged judgment of High Court passed in review petition granting decree for possession of additional 2 marlas of land to plaintiff---Defendant though objected to such report before Trial Court, but had accepted its correctness after judgment of Revisional Court---Defendant after having accepted decree to tune of 4 marlas on basis of such report could not question encroachment to extent of remaining 2 marlas---High Court in exercise of review jurisdiction had corrected an error appearing on face of record---Demarcation of suit-land had been conducted by a senior officer of Revenue Department in presence of parties---Such report was not divisible--Supreme Court refused to grant leave to appeal in circumstances.

(b) Administration of justice---

----Party to litigation cannot blow hot and cold in one and same breath.

Malik Manzoor Hussain, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 30th June, 2009.

SCMR 2011 SUPREME COURT 1003 #

2011 SCMR 1003

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk and Ghulam Rabbani, JJ

SABIR HUSSAIN alias SABRI---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 56 of 2009, decided on 28th May, 2009.

(On appeal from the judgment of the Lahore High Court, Multan Bench dated 2-11-2008 passed in M.R. No. 385 of 2003 and Criminal Appeal No. 49 of 2003).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Motive alleged was that accused had a grouse against one "S"; that the latter had forbidden husband of sister of accused not to divorce accused's sister---Findings of Trial Court stood affirmed by the High Court---Accused had sought leave to appeal on the ground that incident was a night time occurrence, not witnessed by anyone and that the report of Forensic Science Laboratory qua the empties recovered from the spot was negative and that the motive alleged was too weak to prompt the murder of deceased, if the alleged motive was believed, then the real target should have been said "S"---Leave to appeal was granted by Supreme Court, inter alia, to consider that whether in the peculiar facts and circumstances of the case, the sentence of death was too harsh and inappropriate.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Pervez Alimgir, D.P.-G. for the State.

Date of hearing: 28th May, 2009.

SCMR 2011 SUPREME COURT 1004 #

2011 SCMR 1004

[Supreme Court of Pakistan]

Present: Mehmood Akhtar Shahid Siddiqui, Tariq Parvez and Mian Saqib Nisar, JJ

GOVERNMENT OF N.-W.F.P. (Now KPK) through its Chief Secretary and others---Appellants

Versus

KALEEM SHAH and others---Respondents

Civil Appeals Nos. 150-P and 151-P of 2009 along with Civil Petition No. 654-P of 2009, decided on 24th March, 2011.

(On appeal from the judgment/order dated 11-9-2007 and 16-9-2009 passed by Peshawar High Court, Peshawar in W.Ps. No. 475, 1731 of 2006 and 2131 of 2009).

North-West Frontier Province Civil Servants Act (XVIII of 1973)---

----S.19 [as amended by North-West Frontier Province Civil Servants (Amendment) Act (IX of 2005) w.e.f. 12-7-2005]-Regularization of service of contract employees by operation of law---Scope---Cases of contractual employees though appointed on project works would fell within ambit of S. 19(2) of North-West Frontier Province Civil Servants Act, 1973.

Syed Arshad Hussain Shah, Additional A.-G. KPK for Appellants.

Zafar Abbas Zaidi, Advocate Supreme Court for Respondents Nos. 1, 2 and 5 (in C.A. No. 150-P of 2009).

Muhammad Essa Khan, Advocate Supreme Court for Respondent (in C.A. No. 151-P of 2009).

Nemo for Respondent (in C.P. No. 654-P of 2009).

Date of hearing: 24th March, 2011.

SCMR 2011 SUPREME COURT 1009 #

2011 SCMR 1009

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Jawwad S. Khawaja and Mian Saqib Nisar, JJ

MUBASHIR AHMAD---Appellant

Versus

Syed MUHAMMAD SHAH through Legal Heirs---Respondents

Civil Appeal No. 771 of 2006 and Civil Petition No. 296 of 2006, decided on 29th October, 2010.

(On appeal from the judgment of Sindh High Court, Hyderabad Circuit Bench, dated 24-3-2006 in C.R.As. Nos. 53 and 54 of 1992).

(a) Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 117---Suit for specific performance of agreement to sell immovable property---Defendant alleging transaction between parties to be for lease' of land and notsale'---Burden of proof---Burden would lie on plaintiff to prove that such transaction was an agreement to sell---Great caution would be taken before accepting evidence of oral agreement to transfer title in immovable property.

(b) Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 117---Limitation Act (IX of 1908), Art. 113---Suit for specific performance of oral agreement to sell land---Defendant alleging transaction entered between parties in year 1973 to be for lease of land and not its sale---Proof---Burden would lie on plaintiff to prove that such transaction was an agreement to sell---Plaintiff filed suit in year 1982 after receipt of notice from Revenue Court issued on defendant's application seeking eviction of plaintiff from suit land---Plaintiff was enjoying peaceful possession of suit land since year 1974---Limitation for filing such suit would run from date on which defendant had refused to perform his part of contract---Defendant had purchased suit land in year 1973/74 for Rs.11,000--Plaintiff had paid Rs. 10,400 to defendant out of total sale consideration of Rs.14,000---Defendant had admitted receipt of Rs.9,400 through cheque---Receipt of Rs.10,400 by defendant from plaintiff, if accepted, would make implausible that, plaintiff would have paid such amount as rent for suit land valuing Rs.11,000---All such would show that oral evidence produced by plaintiff to establish agreement to sell had received corroboration from other circumstances of case---Defendant had failed to establish that suit land had been leased out to plaintiff---Suit was decreed in circumstances.

Abdur Rashid Awan, Advocate Supreme Court for Appellant.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court for Respondent.

Date of hearing: 29th October, 2010.

SCMR 2011 SUPREME COURT 1013 #

2011 SCMR 1013

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Amir Hani Muslim, JJ

STATE LIFE INSURANCE CORPORATION OF PAKISTAN and another---Petitioners

Versus

JAVAID IQBAL---Respondent

Civil Petition No. 2519 of 2010, decided on 14th February, 2011.

(Against the judgment dated 16-9-2010 passed by Lahore High Court, Lahore in R.F.A. No. 447 of 2008).

(a) Insurance Ordinance (XXXIX of 2000)---

----S. 118---Civil Procedure Code (V of 1908), O. VII, R. 14, O. XIII, Rr. 1, 3 & 4---Life insurance policy and liquidated damages, amount of---Suit for recovery of such amount by husband/nominee of deceased insured---Plea of Insurance Company that insurance contract founded upon rule of Uberrima Fides (i.e. utmost good faith) stood vitiated as deceased had breached such rule by concealing her serious illness at the time of obtaining and subsequently getting revived insurance policy---Application by company to produce additional evidence by examining doctor as witness, who had issued certificate showing that deceased was indisposed for last six years before her death---Validity----List of witnesses filed by company did not find mention name of such witness----Company had neither filed such certificate along with written statement nor relied thereupon---Such additional evidence could not be allowed without establishing a sufficient cause for non filing and non-relying upon such certificate---Such certificate not produced and proved in evidence but only "marked" could not be considered by courts as a legal evidence of a fact---Only witness examined by company had not made testimony about illness of deceased and its concealment---Company after death of insured was obliged to pay amount covered by such policy---Company had withheld such amount without any reasonable cause and excuse---Suit was decreed in circumstances.

(b) Civil Procedure Code (V of 1908)---

----O.XIII, Rr. 3 & 4---Document not produced and proved in evidence but only marked could not be considered by courts as a legal evidence of a fact.

Sana Ullah Zahid, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

SCMR 2011 SUPREME COURT 1016 #

2011 SCMR 1016

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Sair Ali, Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

SUO MOTU CASE NO. 6 OF 2010: In re

(SUO MOTU ACTION REGARDING PAYMENT OF PRESCRIBED MINIMUM WAGES TO THE SECURITY GUARDS WORKING IN PTCL)

Suo Motu Case No. 6 of 2010, decided on 14th February, 2011.

Minimum Wages for Unskilled Workers Ordinance (XX of 1969)---

----S. 4---Constitution of Pakistan, Arts. 9 & 184---Minimum wages Rs. 7,000 per month for unskilled workers/labourers---Applicability of such wages to private and official organizations in Islamabad Capital Territory and other Provinces---Scope---Such wages would apply to all organizations falling within ambit of Labour Laws---Security Guards arranged by Security Agencies working in Pakistan Telecommunication Corporation Limited must get such wages---Supreme Court emphasized on implementation of such law in letter and spirit.

Muhammad Munir Pieracha, Advocate Supreme Court, Afnan Karim Kundi, Advocate Supreme Court and Zahida Awan, G.M. (Legal), PTCL for PTCL.

Javed Iqbal, CLA on behalf of Secretary, Ministry of Labour and Manpower, Government of Pakistan, Islamabad, Dr. Ijaz Muneer, Secretary, Labour and Manpower Department, Government of the Punjab, Lahore, Mukhtar Soomro, Secretary, Labour and Manpower Department, Government of Sindh, Aftab Ahmed Khan, Additional Secretary, Lahore and Manpower Department, Government of Khyber Pakhtunkhwa, Peshawar, Haji Abdul Qayyum kakar, Secretary Labour and Manpower Department Government of Balochistan, Quetta and Tariq Mehmood Pirzada, Chief Commissioner, ICT along with Raja Akbar Hayat, Director ICT on Court Notice.

SCMR 2011 SUPREME COURT 1019 #

2011 SCMR 1019

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

MUHAMMAD RIAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Review Petition No. 24 of 2008, decided on 17th August, 2009.

(Against the order dated 1-4-2008 passed by this Court in Criminal Appeal No. 94 of 2005).

Constitution of Pakistan---

----Art. 188---Penal Code (XLV of 1860), S. 302---Qatl-e-amd---Review of Supreme Court judgment---All the grounds raised by the accused petitioners at the time of hearing of the appeal had been considered by Supreme Court, as indicated by the impugned judgment---Raising of new ground and arguing the same in review petition could not be allowed, as per consistent practice of Supreme Court---No case for interference in the impugned judgment was made out---Review petition was dismissed accordingly.

Muhammad Pervez and others v. The State and others 2007 SCMR 670; Lal Pasand v. The State PLD 1981 SC 142 and Riaz v. The State 1998 PCr.LJ 1613 ref.

Muhammad Zaman Matti, Advocate Supreme Court for Petitioner.

Ch. Muhammad Tariq, Additional, P.-G. for the State.

SCMR 2011 SUPREME COURT 1021 #

2011 SCMR 1021

[Supreme Court of Pakistan]

Present: Sayed Zahid Hussain and Mahmood Akhtar Shahid Siddiqui, JJ

MUHAMMAD ISHFAQ AHMAD SIAL---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY and others---Respondents

Civil Petition No. 1168-L of 2009. decided on 18th August, 2009.

(Against the order dated 28-4-2009 of the Lahore High Court, Multan Bench passed in ICA. No. 101 of 2006).

Uniform Semester Rules, 2007---

----R. 11(v)---Constitution of Pakistan, Art. 185(3)---Educational institution---Removal of name from rolls of department---Cumulative Grade Point Average (C.G.P.A.)-Petitioner . got admission in 6th semester and secured 1.92, C.G.P.A. in examination---University authorities struck the name of petitioner from rolls of department as he failed to secure 2.00, C.G.P.A.---Decision of' University Authorities was maintained by High Court---Validity---Petitioner had since remained unable to obtain minimum requisite C.G.P.A his removal from roll was consistent with rules and High Court rightly declined to interfere in view of the provisions of R. 11(v) of Uniform Semester Rules, 2007---Supreme Court declined to interfere in the judgment passed by High Court, as the same was consistent with the provisions of Uniform Semester Rules, 2007---Leave to appeal was refused.

Muhammad Awaiz Akhtar v. Bahauddin Zakariya University and 2 others 2009 CLC 163 rel.

Mian Muhammad Nawaz, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 18th August, 2009.

SCMR 2011 SUPREME COURT 1023 #

2011 SCMR 1023

[Supreme Court of Pakistan]

Present: Javed Iqbal, Asif Saeed Khan Khosa and Amir Hani Muslim, JJ

AMIR JAMAL and others---Appellants

Versus

Malik ZAHOOR-UL-HAQ and others---Respondents

Civil Appeal No. 15-Q of 2009, decided on 6th April, 2011.

(On appeal against the judgment dated 26-11-2007 passed by the High Court of Balochistan, Quetta in C.P. No. 576 of 2007).

(a) Specific Relief Act (I of 1877)---

----S. 39---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Prayer for cancellation of registered sale-deed---Petitioner's plea that his signatures on such deed had been procured by fraud---Order of High Court cancelling such deed and restoring possession of property to petitioner---Validity---Question of title of a property could not be gone into by High Court in constitutional jurisdiction---Such jurisdiction of High Court would extend to questions devoid of factual controversy---Registered document could be cancelled on ground of fraud or otherwise only by civil court in a suit and jurisdiction of High Court in such matters was barred--Issue raised in constitutional petition could only be resolved by recording of evidence of parties, which law did not permit to High Court in constitutional jurisdiction---High Court had gone beyond its jurisdiction while passing impugned order---Petitioner had and has alternate remedy to approach competent civil court for redressal of his grievance---Supreme Court set aside impugned order in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of high Court---Scope---Such jurisdiction would extend to questions devoid of factual controversy.

Tariq Mehmood, Senior Advocate Supreme Court for Appellants.

Mrs. Rukhsana Malik, Advocate Supreme Court along with Respondent No. 1.

Ex parse for Respondents Nos. 2 and 3.

Date of hearing: 6th April, 2011.

SCMR 2011 SUPREME COURT 1026 #

2011 SCMR 1026

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Nasir-ul-Mulk and Ch. Ijaz Ahmed, JJ

MOHIM KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 179 of 2008, decided on 23rd October, 2009.

(On appeal from the judgment of, High Court of Balochistan, Quetta dated 11-12-2006 passed in Criminal Jail Application 87 of 2003 and Murder Reference No. 14 of 2003).

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appraisal of evidence---Record did not even remotely indicate implication of accused in the case due to any previous enmity or dishonest motive---Occurrence had gone unwitnessed, but the confession made by accused under S. 164, Cr.P.C. rang true and sounded believable and had been rightly trusted by the Trial Court as well as by the High Court---Conviction of accused was consequently maintained---Judicial confession had transpired that the deceased prior to the occurrence while armed with a kalashnikov, had surreptitiously entered the house of accused at mid night, but had then run away when the inmates of the house had woken up and the accused at that time did not interfere because of being empty handed---Accused on account of said grouse had ultimately caused the murder of the deceased---Immoral or improper act of the deceased himself had led or at least contributed to ,his ultimate murder---Imposition of normal penalty of death on the accused, in the circumstances, was not warranted---Sentence of death awarded to accused was set aside and instead he was sentenced to imprisonment for life accordingly.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Nemo for the State.

Date of hearing: 23rd October, 2009.

SCMR 2011 SUPREME COURT 1028 #

2011 SCMR 1028

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Jawwad S. Khawaja, JJ

MUHAMMAD KHAN and others---Petitioners

Versus

WAPDA through Project Director and others---Respondents

Civil Petition No. 1505 of 2009, decided on 25th August, 2009.

(On appeal from the order/judgment dated 31-7-2009 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in C.R. No. 355 of 2009).

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Permanent injunction, suit for---Passing of 132 KV transmission line by WAPDA over whole of plaintiffs land causing damage to his life and property---Plaintiffs application for temporary injunction dismissed by Trial Court and High Court---Plaintiffs plea that WAPDA should pass such wire along periphery of his land---Validity--Site plan on record showed that such wire could be passed from periphery of land instead of over and above of plaintiffs' land---Balance should be struck between rights of citizens and plans to be executed by WAPDA for welfare, economic progress and prosperity of country---In case of threats of serious damage, effective measures should be taken to control same---Supreme Court set aside impugned orders and accepted such application while directing WAPDA to stake necessary changes in its plan.

Ms. Shela Zia and others v. WAPDA PLD 1994 SC 693 rel.

Ch. Afrasiab Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.

S. Moazzam Ali Rizvi, Advocate Supreme Court for Respondents.

Date of hearing: 25th August, 2009.

SCMR 2011 SUPREME COURT 1030 #

2011 SCMR 1030

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD ALI SATAKZAI and others---Petitioners

Versus

APPOINTING AUTHORITY, through Registrar Balochistan High Court and others---Respondents

Civil Petition No. 26-Q of 2010, decided on 5th May, 2010.

(On appeal from the judgment dated 4-3-2010 of the High Court of Balochistan, Quetta passed in Constitutional Petition No. 803 of 2009).

Balochistan Additional District and Sessions Judges and District and Sessions Judges Service Rules, 2002---

----Preamble---Constitution of Pakistan, Arts. 2-A, 175, 199 & 203---Constitutional petition---Additional District and Sessions Judges, Civil Judges/Judicial Magistrates and Judicial Officers, posts of---Appointment on such posts by Chief Justice of High Court subject to regular selection of appointees by Public Service Commission---Order of High Court passed in exercise of constitutional jurisdiction restraining permanently such Commission from conducting tests/ interviews regarding any such posts in future while directing Government to make within 60 days necessary amendments in Balochistan Additional District and Sessions Judges and District and Sessions Judges Service Rules, 2002, Balochistan Civil Judges/Judicial Magistrates Service Rules, 2002 and Balochistan Qazis and Member Majlis-e-Shoora Service Rules, 2002 to enable High Court to conduct tests/interviews for recruitment of Judicial Officers through a Commission comprising of its Administrative Committee or a Committee of three or more Judges constituted by such Committee---Validity---Introduction of Public Service Commission in process of selection of such Judicial Officers was offensive of concept of independence of judiciary and separation of judiciary from executive---Petitioners appointees could not claim to have any vested right entitling them to regularization of their services in violations of conditions on which their appointments had been made and subject to which conditions they had accepted their appointments---Impugned declaration and directions of High Court were not open to any exception---Supreme Court refused to grant leave to appeal.

Muhammad Aslam Chishti, Senior Advocate Supreme Court and S.A.M. Qaudri, Advocate-on-Record for Petitioners.

Mehmood Raza, Additional A.-G. for Respondents.

Applicants in person (in CMA No. 47-Q of 2010).

SCMR 2011 SUPREME COURT 1034 #

2011 SCMR 1034

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Rehmat Hussain Jafferi and Tariq Parvez, JJ

SANJHA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 359 of 2009, decided on 14th January, 2010.

(On appeal against the judgment dated 9-5-2006 passed by Lahore High Court, Multan Bench, Multan, in Criminal Appeal No. 312 of 2004).

Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Possession of narcotics---Appraisal of evidence---Sentence, reduction in---Accused had been rightly found guilty for the recovery of ten kilograms "Charas" from his possession---Conviction of accused was consequently maintained-However, accused was more than 80 years old and he had remained in jail for about 4/5 years---Sentence of imprisonment for life awarded to accused was reduced to the imprisonment already undergone by him with reduction in fine in circumstances.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Syed Ali Imran, D.P.-G., Punjab for the State.

SCMR 2011 SUPREME COURT 1035 #

2011 SCMR 1035

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

MAQBOOL AHMAD and others---Applicants

Versus

FAZAL-E-HAQ and others---Respondents

C.M.As. Nos. 777 of 2007 and 3312 of 2010 in C.A. No. 2103 of 2000 and C.M.A. Nos. 778 of 2007 and 3313 of 2010 in C.A. No. 2104 of 2000 and C.M.A. No. 3119 of 2007 in C.A. No. 2103 of 2000 and Criminal O.P. 76 of 2010 in C.A. No. 2103 of 2000, decided on 28th' March, 2011.

(Applications for restoration of C.A. 2103, 2104 of 2000 dismissed for non-prosecution by this court on 7-6-2006).

Supreme Court Rules, 1980---

----O. XIX---Dismissal of appeal for non-prosecution-Application for restoration on the ground that appeals were filed by a Senior Advocate of Supreme Court, who when the notice for hearing of the case was given, was already a Judge of the Federal Shariat Court and appellant had no notice of the fixation of the case---Notices, in fact, were not only issued to the AOR for the appellants but also to the AOR for the respondents, however none appeared even for the respondents---Issue involved in the main appeals pertained to inheritance, Supreme Court allowed the applications and restored the appeals subject to payment of cost by the appellants to the tune of Rs.20,000.

Bashir Ahmad v. Muhammad Hussain 2010 SCMR 822 ref.

Kh. Saeeduz Zafar, Advocate Supreme Court for Applicants.

Clr. Mushtaq Ahmed, Senior Advocate Supreme Court and Gulzarin Kiyani, Senior Advocate Supreme Court for Respondents.

SCMR 2011 SUPREME COURT 1037 #

2011 SCMR 1037

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Nasir-ul-Mulk and Ch. Ijaz Ahmed, JJ

RASHID ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 265 of 2008, decided on 27th October, 2009.

(On appeal from the judgment of the High Court of Sindh, Karachi dated 3-10-2007 passed in Criminal Appeal No. 69 of 2007 and C.C. No. 3 of 2007).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Leave to appeal was granted to accused by Supreme Court to consider only the quantum of punishment deserved by him.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Sentence, assessment of---Accused, a Naik in the Rangers had killed a co-employee of the Rangers by firing with his official rifle---Reason for the murder had been explained by the accused himself in his judicial confession---Conduct and act of accused, who belonged to a disciplined force and was entrusted with an official assault rifle meant for the purpose of the State, in showing such a reckless and callous disregard for a colleague and that also not on an immediate reaction to the allegedly false complaint but after almost 45 minutes of the making of the said complainant when he had time to cool down, was not a type of conduct which could invoke sympathy or leniency for him---Sentence of death as confirmed by High Court was maintained and the appeal was dismissed accordingly.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

M. Saleem Akhtar Buriro, Additional P.-G. Sindh for the State.

Date of hearing: 27th October, 2009.

SCMR 2011 SUPREME COURT 1039 #

2011 SCMR 1039

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

Mst. SAIMA---Appellant

Versus

PARAMOUNT SPINNING MILLS LTD. and others---Respondents

Civil Appeals Nos. 551 to 555 of 2006, decided on 31st March, 2011.

(On appeal from judgment dated 6-12-2005 of the Lahore High Court, Lahore, passed in Civil Revisions Nos. 2479, 2485, 2480 and 2481 of 2005).

(a) Co-sharer---

----Joint immovable property---Sale of such property by co-sharer to extent of his/her share therein could not be declared invalid on ground that vendee had changed its status from one category to another i.e. from agricultural to industrial purpose; and that such change would not debar vendee from using land in any manner as owner---Principles.

Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9; Feroz v. Sher PLD 1985 SC 284; Shah Hussain v. Abdul Qayum 1984 SCMR 427; Muhammad Sharif and others v. Ghulam Hussain 1995 SCMR 514; Jan Muhammad v. Abdul Rashid 1993 SCMR 1463 and Mst. Resham Bibi v. Lal Din 1999 SCMR 2325 rel.

(b) Civil Procedure Code (V of 1908)---

---O. XXZX, R.1 & S. 96---Appeal by company through its Director---Competency of Director to file such appeal not objected to in writing by respondent--Affidavit of respondent's counsel filed in Revisional Court stating that such objection was raised, but was not considered by Appellate Court---Validity---Appeal was continuation of original proceedings--Memo of appeal was not required to be signed by appellant, but his counsel could file same under his signature---When a person having signed memo of appeal or any other document claimed to be a Director of appellant company, then opposite party challenging his such statement and/or authority would be bound to file written objection Or affidavit stating such objection in order to provide opportunity to appellant to reply same---Objection of such nature being curable could not be raised at revisional stage---High Court repelled such objection in circumstances.

Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd: PLD 1971 SC 550; Messrs Muhammad Siddiq v. The Australsia Bank Ltd. PLD 1966 SC 684; Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC 676; Ali Gohar Khan v. Sher Ayaz and others 1989 SCMR 130; Fazal and others v . Ghulam Muhammad 2003 SCMR 999 and Akhtar Nawaz Khan v. Danial Khan 1994 .Law Notes 1148 distinguished.

M. Shahzad Shoukat, Advocate Supreme Court for Appellant.

Syed Najmul Hassan Kazmi, Senior Advocate Supreme Court for Respondent No. 1.

Ex parte for Respondent No. 2 (in all appeals).

Date of hearing: 31st March, 2011.

SCMR 2011 SUPREME COURT 1044 #

2011 SCMR 1044

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Khilji Arif Hussain and Tariq Parvez, JJ

ABDUL LATIF and another---Petitioners

Versus

THE STATE and others---Respondents

Criminal Petitions Nos. 465 and 476 of 2010, decided on 2nd November, 2010.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench dated 21-7-2010 passed in Murder Reference No. 733 of 2005, Criminal Appeal No. 347 of 2005 and Criminal Revision No. 121 of 2006).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art.185(3)---Qatl-e-amd---Deceased was strangulated in his house---Leave to appeal was granted to consider whether the conviction of the petitioner, could be sustained in the light of the argument advanced by counsel for the petitioner that the ocular testimony was not credible, as the witnesses were typical chance witnesses for they had furnished no plausible explanation for their presence near the house of the deceased early in the morning at about 6-30 a.m.; that it was unbelievable coincidence that the witnesses should arrive at the scene just at the right moment when the deceased was being strangulated; that it was also not believable that the complainant and the two eyewitnesses made no effort to either prevent the deceased from being strangulated or stopping the accused from taking away the valuables of the deceased.

Basharat Ullah Khan, Advocate Supreme Court for Petitioners (in Criminal Petition No. 465 of 2010).

Rai Muhammad Nawaz Kharal, Advocate Supreme Court for Petitioners (in Criminal Petition No. 476 of 2010).

Ahmed Raza Gilani, Additional P.-G. for the State.

SCMR 2011 SUPREME COURT 1046 #

2011 SCMR 1046

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Tariq Parvez Khan, JJ

MUHAMMAD ASHRAF---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 353 of 2009, decided on 14th December, 2009.

(On appeal from the judgment dated 21-5-2009 of the Lahore High Court, Rawalpindi Bench passed in Criminal Appeals Nos. 109 and 101 both of 2004 and Murder Reference No. 158 of 2004).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---F.I.R. had been lodged within one hour of the occurrence---Accused was specifically charged for firing at the two deceased---Minor dispute regarding blockage of the passage could not be taken as sufficient to indicate serious enmity between the parties for involving the accused falsely in a double murder case---Eye-witnesses, though related to the deceased, were not inimical to accused---Mere delay in sending of recovered pistol to Forensic Science Laboratory in absence of evidence of tampering would not weaken its positive report---Pistol recovered at the behest of accused had matched with the crime empty, which had very strongly corroborated the ocular testimony---Leave to appeal was declined to accused in circumstances.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Shahid Abbasi, Dy. P.-G., Punjab for the State.

SCMR 2011 SUPREME COURT 1048 #

2011 SCMR 1048

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

MUSHTAQ HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 352 of 2009 in I.P. No. 109 of 2007, decided on 28th September, 2009.

(On appeal from the judgment dated 8-1-2007 passed by the Lahore High Court, Lahore, in Criminal Appeal No. 163 of 2002 and Murder Reference No. 73 of 2002).

Penal Code (XLV of 1860)---

----Ss. 302(b)/34 & 337-F(ii)---Constitution of Pakistan, Art.185---Qatl-e-amd and causing `badi'ah'---Reappraisal of evidence-Improvement was found in the statement of the complainant---Cause of occurrence and motive for the same was trivial---Defence version as given by accused in response to question under S.342, Cr.P.C. was completely different which was a clear shift in the stance of the complainant, who changed his own version as to the seat of injury attributed to accused---Other eye-witnesses attributed to accused chhuri blows hitting at the abdomen of the deceased---Chest injury was stated to have been caused by co-accused who was given lesser penalty by the High Court---Co-accused who was attributed the fatal injury hitting the chest of the deceased had been given life imprisonment; while the accused who caused the injury hitting the deceased at abdomen, was to face extreme. penalty of death, which was incongruous situation---Lesser penalty given to co-accused had not been assailed---Both, accused and co-accused had been found guilty and convicted, but variation of sentence had engaged attention of the court---When the complainant had changed his stance from the one given by him in the F.I.R. and the testimony of other eye-witness being inconsistent, with each other, accused, did not deserve the penalty of death in such a state of evidence led by the prosecution---Death sentence awarded to accused, was altered to life imprisonment, which would meet the ends of justice, in circumstances.

M. Javed Aziz Sandhu, Advocate Supreme Court for Appellant.

M. Siddique Khan Baloch, D.P.-G, Punjab for the State.

Date of hearing: 28th September, 2009.

SCMR 2011 SUPREME COURT 1053 #

2011 SCMR 1053

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Sardar Muhammad Aslam, JJ

Messrs SEZAI TURKES FEYZI AKKAYA CONSTRUCTION COMPANY (STFA)---Petitioner

Versus

Messrs EKON YAPI ONARIM TICARET VE. SANAYI LTD. and 2 others---Respondents

C.P. No. 1141 of 2008, decided on 29th July, 2009.

(On appeal from the judgment dated 9-5-2008 passed by the Islamabad High Court, Islamabad, in C.R. No. 244 of 2007).

Civil Procedure Code (V of 1908)---

----O. VII, R.11 & S.20---Constitution of Pakistan, Art.185(3)---Agreement reached between two foreign companies having their Head Office abroad, provided that dispute arising out of the contract/ construction work they had undertaken in Pakistan, would be resolved in the courts of their own country---One company instituted suit against the other for recovery of money in Pakistan---Defendant company filed application under O. VII, R.11, C.P. C. for rejection of plaint---Leave to appeal was granted by Supreme Court to consider whether the agreement executed between the parties had the effect of ousting the jurisdiction of the courts in Pakistan; whether the petitioner-defendant maintained a Sub-Office in Pakistan; and whether the cause of action had partly accrued in Pakistan.

Messrs Brady & C. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. 1981 SCMR 494; WAPDA and 2 others v. Mian Ghulam Bari PLD 1991 SC 780; Messrs Rupali Polyester Ltd. v. Dr. Nael G. Bunni and others PLD 1994 Lah. 525 and M.A. Chowdhury v. MITSUI O.S.K. Lines Ltd. and 3 others PLD 1970 SC 373 ref.

M. Bilal, Senior Advocate Supreme Court for Petitioner.

Farooq Adam Khan, Advocate Supreme Court for Respondent No. 1.

Ex parte for Respondents Nos. 2 and 3.

SCMR 2011 SUPREME COURT 1055 #

2011 SCMR 1055

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Rehmat Hussain Jafferi and Tariq Parvez, JJ

RAEES KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 337 of 2009, decided on 8th January, 2010.

(On appeal against the judgment dated 20-1-2009 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi, in Criminal Appeal No. 518 of 2002 and M.R. No. 719 of 2002).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd--Leave to appeal was granted to accused to consider the quantum of his sentence on the ground of the occurrence being the result of sudden flare up, which attracted the provisions of S. 302(c), P. P. C. instead of S. 302(b), P.P. C. in circumstances of the case.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appraisal of evidence---Accused had made effective firing at the deceased while removing thorny hedge from a disputed place, which was not allowed by the complainant party---Accused party had also received certain injuries as a result of the fight between the parties---Deceased was done to death by accused by firing at him with a lethal weapon on a vital part of his body---Accused had come to the spot being armed with a fire-arm,' while the complainant party was not having any such weapon with them in order to avoid any apprehended act---According to the complainant himself, injuries had been caused to the accused party after the accused had fired at the deceased, which fact had not been dislodged---No case was made out to fall within the ambit of S. 302(c), P. P. C. for reduction in the sentence of accused from imprisonment for life to any other lesser term of imprisonment---Appeal was dismissed in circumstances.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Syed Ali Imran, D.P.-G. for the State.

Date of hearing: 8th January, 2010.

SCMR 2011 SUPREME COURT 1057 #

2011 SCMR 1057

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Jawwad S. Khawaja, JJ

MAQSOOD AHMAD---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 644 of 2009, decided on 14th January, 2010, (On appeal from the judgment of the Lahore High Court, Lahore dated 1-6-2009 in Criminal Appeal No. 1972 of 2003 and Murder Reference No. 640 of 2003).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art.185(3)---Qatl-e-amd---Reappraisal of evidence---Presence of complainant and other prosecution witness at the Chambers of deceased Advocate could not be termed as abnormal---Accused was arrested in the court premises by the Police, while he was fleeing the scene after committing the crime---Rifle, with which accused had committed the murder was recovered from him at the time of arrest---Empty retrieved from the scene of occurrence was sent for examination to the Forensic Laboratory along with rifle---Report of firearms expert showed that the empty matched with the weapon of offence---Motive for the crime had been admitted by accused in his statement recorded under S.342, Cr.P.C.---Ocular testimony having been amply corroborated by the arrest of accused from the scene, soon after the murder, the motive and the matching of the empty with the weapon of offence recovered from accused, there was no reason to further reappraise the evidence---Conviction and sentence of accused by the Trial Court and its affirmation by the High Court, did not call for any interference by the Supreme Court.

Sardar M. Siddique Khan, Advocate Supreme Court for Petitioner.

Mian Asif Mumtaz, D.P.-G, Punjab for the State.

Date of hearing: 14th January, 2010.

SCMR 2011 SUPREME COURT 1059 #

2011 SCMR 1059

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ

MEHMOODUL HASSAN and others---Appellants

Versus

Mst. JANNAT and others---Respondents

Civil Appeal No. 171 of 2002, decided on 23rd February, 2011.

(Against the judgment dated 28-6-2000 passed by the Lahore High Court, Multan Bench in C.R. 508-D of 2000).

Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 19-A---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Succession to tenancy of State land allotted to deceased under Grow More Food Scheme---Attestation of inheritance mutation in favour of defendants being grandson and daughter of deceased tenant---Plaintiffs claiming to be son and daughter of deceased tenant on basis of will executed by deceased in their favour alleged inheritance mutation to be against law and facts---Dismissal of suit by Trial Court, Appellate Court and in revision by High Court---Validity---Supreme Court granted leave to appeal to consider questions as to whether such will was a substantial proof of plaintiff's relationship with deceased and same had not been considered by courts below, and that whether plaintiffs were entitled to get 1/3 share out of suit land on strength of such will, if they were held not to be legal heirs of deceased.

Mst. Hussain Bibi and others v. Barkat Ali and others 2004 SCMR 1391 ref.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court for Appellants.

Qalab-e-Hassan, Advocate Supreme Court for Respondents.

Raja Ibrahim Satti, Senior Advocate Supreme Court for Applicant (in C.M.A. No. 834 of 2009).

SCMR 2011 SUPREME COURT 1063 #

2011 SCMR 1063

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

GHULAM QASIM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 86 of 2010 in J.P. No. 477 of 2009, decided on 17th August, 2010.

(Against the judgment dated 19-5-2009 passed by the Lahore High Court, Lahore in Criminal Appeal No. 450-J of 2003 and Murder Reference No. 595 of 2003).

Criminal Procedure Code (V of 1898)---

----S. 345(2)---Penal Code (XLV of 1860), S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Compromise---Accused had been convicted and sentenced to death by the courts below for the murder of his brother---During pendency of jail petition of accused before Supreme Court parties had made a compromise and an application was moved for acceptance thereof---Compromise effected between the legal heirs of the deceased and the accused was found to be genuine and without any pressure and coercion---Application for compromise was consequently allowed---Jail Petition was converted into appeal and the accused was acquitted in circumstances.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Syed Zafar Abbas Naqvi, Advocate Supreme Court for Applicant along with Mulazim Hussain, Riaz and Sanwaran Bibi.

Rafiullah, Additional S.H.O. along with Ghulam Sakina, Ex. wife of deceased on Court's Notice.

Raja Shahid M. Abbasi, D.P.-G. for the State.

SCMR 2011 SUPREME COURT 1064 #

2011 SCMR 1064

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Sardar Muhammad Aslam, JJ

ABDUL KARIM and another---Petitioners

Versus

Raja MUHAMMAD YOUNAS and others---Respondents

C.P. No. 856 of 2008, decided on 3rd July, 2009.

(On appeal from the judgment dated 7-5-2008 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi, in C.R. No. 379-D of 2004) .

Specific Relief Act (I of 1877)---

----S. S4---Civil Procedure Code (V of 1908), O.XXI, R.32--- Execution of decree for permanent injunction---Decree restraining defendant (owner of adjacent house) from using stair-case and dheori of plaintiff's house---Violation of such decree by defendant after using space underneath such stair case as kitchen---Defendant's plea that decree had not restrained use of such space---Appointment of Local Commission by Executing Court to inspect site and submit his report with site plan---Disposal of execution petition in terms of report of Local Commission suggesting closing down opening doors in lower portion and upper storey of defendant's house---Validity---Both parties had been transferred adjacent houses from Settlement Department---No kitchen existed at time of inspection of site by Local Commission---Defendant having no access to stair-case and dheori was not entitled to run a kitchen under stair-case---Defendant could approach first storey of his house through wooden ladder from courtyard---Decree did not find mention of kitchen under stair-case, but mode suggested in such report had ended hostility between two neighbours for all times to come---Impugned order was upheld by High Court and Supreme Court in circumstances.

Muhammad Younas Bhatti, Advocate Supreme Court for Petitioners.

Nemo for Respondent No.1.

Nemo for Respondents Nos. 2 to 5.

Date of hearing: 3rd July, 2009.

SCMR 2011 SUPREME COURT 1067 #

2011 SCMR 1067

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Jawwad S. Khawaja and Rahmat Hussain Jafferi, JJ

MUHAMMAD HANAF through Legal Heirs and others---Petitioners

Versus

MEMBER JUDICIAL-II, NOTIFIED OFFICER WITH POWERS OF CHIEF SETTLEMENT COMMISSIONER, PUNJAB and others---Respondents

Civil Petitions Nos. 1377 and 1378 of 2009, decided on 27th April, 2010.

(On appeal from the judgment of the Lahore High Court, Lahore dated 20-5-2009 passed in ICAs Nos. 606 and 607. of 2006).

Pakistan (Administration of Evacuee Property) Act (XII of 1957)---

----S. 22---Constitution of Pakistan, Art. 185(3)---Order of Deputy Custodian declaring disputed land purchased by petitioner from a non-Muslim not to be evacuee property---Revenue record proving government as owner of disputed land---Passing of ex pane decree in favour of petitioner for correcting entries in Revenue Record---Constitutional petition seeking implementation of such order of Deputy Custodian accepted by Single Bench of High Court---Order of Division Bench of High Court directing parties to approach Civil Court for such matter involved serious factual. controversy regarding genuineness or otherwise of petitioner's sale deed---Validity---Such ex pane decree had been set aside, thus, very basis on which petitioner had filed constitutional petition, no longer existed---Respondent had seriously questioned genuineness of petitioner's sale deed, which dispute could not be decided without recording of evidence---Division Bench of High Court had rightly left such dispute to be decided in suit---Supreme Court refused to grant leave to appeal in circumstances.

Maqbool Elahi Malik, Senior Advocate Supreme Court and Arshad Ali Chaudhry Advocate-on-Record for Petitioners (in both cases).

Nemo for Respondents (in both cases).

Date of hearing: 27th April, 2010.

SCMR 2011 SUPREME COURT 1070 #

2011 SCMR 1070

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Raja Fayyaz Ahmed, Jawwad S. Khawaja, Rahmat Hussain Jafferi and Tariq Parvez, JJ

WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA) through Chairman and others---Petitioners

Versus

Dr. ALTAF-UR-REHMAN---Respondent

Civil Review Petition No. 175 of 2008 in Civil Petition No. 1425 of 2008, decided on 30th April, 2010.

(On review from the judgment of this court dated 19-11-2008 passed in C.P. No. 1425 of 2008).

(a) Water and Power Development Authority (Water Wing) Scientific Officers Service Rules, 1980---

----Rr.2 & 6(b)(i)---Work-charged employee---Counting of work-charged service towards regular service for grant of time scale---Scope---Work-charged employee, though being employee of WAPDA, could not avail benefit under WAPDA (Water Wing) Scientific Officers Service Rules, 1980---Said Rules did not exclude eligibility of said employee to acquire any benefit thereunder---Ten years' continuous service mentioned in R. 6(b)(i) of the Rules referred to service and was not qualified by word "regular", which would include any service regardless of its nature rendered continuously .in Water Wing of WAPDA.

(b) Constitution of Pakistan---

----Art. 212(3)---Factual plea raised before Supreme Court neither raised in comments filed by authority before Service Tribunal nor decided by the Tribunal---Validity---Such plea could not be raised for first time before Supreme Court.

Aurangzeb Mirza, Advocate Supreme Court for Petitioners.

Shoaib Shaheen, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

Date of hearing: 30th April, 2010.

SCMR 2011 SUPREME COURT 1073 #

2011 SCMR 1073

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui, Tariq Parvez and Mian Saqib Nisar, JJ

Mst. FARHAT JABEEN---Appellant

Versus

MUHAMMAD SAFDAR and others---Respondents

Civil Appeal No. 1098 of 2009, decided on 22nd March, 2011.

(On appeal from the judgment dated 25-6-2009 of the Peshawar High Court, Abbottabad Bench passed in W.P. No. 80 of 2007).

Constitution of Pakistan---

----Art. 199---Constitutional petition---Concurrent findings of facts recorded by two courts of fact---Interference by High Court---Scope---Principles.

In the present case, evidence of the respondent side was only considered and was made the basis of setting aside the concurrent findings of facts recorded by the two courts of fact; whereas the evidence of the appellant was not adverted to at all, touched upon or taken into account, such is a serious illegality committed by the High Court because interference in the findings of facts concurrently arrived at by the courts, should not be lightly made, merely for the reasons that another conclusion shall be possibly drawn, on-the reappraisal of the evidence; rather interference is restricted to the ease of misreading and non-reading of material evidence which has bearing on the fate of the case.

In order to determine the above vice, the High Court is required in law to consider the evidence led by either side; but in the present case, the court has not bothered to take into account such evidence which had prevailed with the two courts of fact while giving decision in favour of the appellant, this by itself is a case where the High Court has committed the grave error of non-reading the evidence, therefore, the impugned judgment was untenable.

Impugned judgment was set aside by the Supreme Court and the matter was remanded to the High Court with the direction that the case be deiced afresh by keeping in view material evidence led by both the sides and also adhering to the rules about the interference in the concurrent findings of the fact recorded by the two courts.?

Gulzarin Kiani, Advocate Supreme Court for Appellant.

Abdur Rasheed Awan, Advocate Supreme Court for Respondent No. 1.

Date of hearing: 22nd March, 2011.

SCMR 2011 SUPREME COURT 1075 #

2011 SCMR 1075

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Nasir-ul-Mulk and Sarmad Jalal Osmany, JJ

MUHAMMAD AMIN---Appellant

Versus

CHIEF ENGINEER, IRRIGATION and others---Respondents

Civil Appeal No. 793 of 2006 and C.M.As. Nos. 3471, 3476, 3519, and 3532 of 2010, decided on 17th February, 2011.

(On appeal against the judgment of Punjab Service Tribunal, Lahore dated 12-12-2001 passed in Appeal No. 494 of 1994).

Punjab Irrigation and Power Department Ministerial Service (Zonal and Circle Offices). Rules, 1998---

----R. 5---West Pakistan Irrigation Department Ministerial (Regional Offices) Service Rules, 1962, Rr. 5, 7 & Appendix---Punjab Service Tribunals Act (IX of 1974), S. 4---Promotion---Appellant being Stenographer in Irrigation Department claimed that his promotion to be due in year 1993 was liable to be made from combined seniority list of Stenographers and Assistants under West Pakistan Irrigation Department Ministerial (Regional Offices) Service Rules, 1962 and not Punjab Irrigation and Power Department Ministerial Service (Zonal and Circle Offices) Rules, 1998---Plea of department that Government of Punjab in years 1983, 1985, 1986 by changing rules had created post of Stenographer and Senior Scale Stenographer making eligible only latter for promotion as Superintendent---Validity---Amendments in Rules, 1962 made in years 1983, 1985 and finally reflected in Rules, 1998 created post of Senior Scale Stenographer making same eligible to promotion to post of Superintendent and not Stenographers---Original posts of Stenographer and Stenotypist under scheme of Basic Pay Scale stood changed to those of Senior Scale Stenographer and Stenographer respectively since year 1983 and expressly incorporated in Rules 1998---Appellant had already availed benefit of notification of year 1983 and was promoted as Senior Scale Stenographer before year 1993---Appellant had no case on merits---Appeal was dismissed in circumstances.

Muhammad Saeed v. Chief Secretary, Government of Punjab Appeal No. 13 of 1993 rel.

Pervaiz Inayat Malik, Advocate Supreme Court for Appellant.

Mudassar Khalid Abbasi, A.A.-G. Punjab, Muhammad Aslam Sipra, DS (Legal) and Ghulam Mustafa, XEN, Lahore for Respondents Nos.. 1 to 4.

Mian Mahmood Hussain, Advocate Supreme Court for Respondent No. 5.

Date of hearing: 17th February, 2011.

SCMR 2011 SUPREME COURT 1080 #

2011 SCMR 1080

[Supreme Court of Pakistan]

Present. Muhammad Sair Ali and Asif Saeed Khan Khosa, JJ

SUDHEER AKHTAR---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 575 of 2010, decided on 4th April, 2011.

(On appeal from the judgment dated 27-10-2010 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeal No. 32 of 2008 and Murder Reference No. 5 of 2008).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Contentions of the counsel for accused were that the F.LR. in the case had been lodged with a noticeable delay and the same had been recorded at the spot whereat the local police had reached on its own after receiving information about the incident from an undisclosed source; that the eyewitnesses produced by the prosecution were related, inimical and chance witnesses who could not be relied upon without receiving independent corroboration; that the motive set up by the prosecution had remained far from being established and the medical evidence produced by the prosecution was in conflict with the ocular account; that the reasons recorded by the High Court in the impugned judgment did not depict serious appraisal of the evidence and such reasons were not only conjectural but they were also based mostly upon surmises---Supreme Court allowed the petition for leave to appeal to reappraise the evidence available on the record.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Muhammad Irfan Malik, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 4th April, 2011.

SCMR 2011 SUPREME COURT 1082 #

2011 SCMR 1082

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ

ADMINISTRATOR ZILA COUNCIL, SAHIWAL---Appellant

Versus

ARIF HUSSAIN and others---Respondents

Civil Appeal No. 1277 of 2005, decided on 17th February, 2011.

(Against the order dated 6-8-2001 of the Lahore High Court, Multan Bench, passed in C.R. No. 741-D of 2001).

Civil Service---

----Reinstatement in service---Back benefits, entitlement to---Absence of specific assertion/plea in plaint and proof by employee of having remained unemployed between date of his termination from service and date of his reinstatement---Plaint containing prayer for such benefits---Validity---Plaint did not contain any averment which would have put defendant-employer on notice that same had to meet a case for payment of back benefits on account of plaintiff's alleged unemployment during period he remained out of service---Prayer in plaint merely seeking back benefits in a cursory manner could not be construed as raising such plea---Plaintiff was, thus, not entitled to back benefits in circumstances.

General Manager NRT v. Muhammad Aslam 1992 SCMR 2169 rel.

Mian Saeed-ur-Rehman Farrukh, Senior Advocate Supreme Court for Appellant.

Muhammad Iqbal Khan, Advocate Supreme Court for Respondent No. 1.

SCMR 2011 SUPREME COURT 1084 #

2011 SCMR 1084

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rehmat Hussain Jafferi, JJ

Dr. SOHRAB AHMEDKHAN SARKI---Petitioner

Versus

Mir HASSAN KHOSO and others---Respondents

C.P.L.A. No. 236-K of 2008, decided on 26th November, 2009.

(On appeal from order of High Court of Sindh, Karachi dated 11-4-2008 passed in C.P. No. D-614 of 2008).

Representation of the People Act (LXXXV of 1976)---

---Ss. 42, 52, 68 & 103-AA---Constitution of Pakistan, Art. 199---Constitutional petition--- Maintainability--- Re-polling- Order of Election Commission---After election final result could not be compiled due to law and order situation at some polling stations--Election Commission directed the authorities for holding of re-polling on disputed polling stations, on the ground that abnormal percentage of votes was cast in favour of returned candidate---Petitioner assailed repolliag before High Court but during the pendency of petition before High Court, re polling was conducted and the petition was dismissed---Validity---Petition under Art. 199 of the Constitution before High Court for challenging the order of Election Commission was competent and maintainable in law---Order passed by Election Commission was arbitrary and result of patent misreading of record and was not open to challenge before Election Tribunal by way of remedy of election petition under S. 52 of Representation of the People Act, 1976---Grounds mentioned in S. 68 of Representation of the people Act, 1976, did not provide for filing of election petition to challenge the order of re polling passed by Election Commission, in exercise of its powers under S. 103-AA of Representation of the People Act, 1976---Exercise of jurisdiction by Election Commission in such an arbitrary manner was uncalled for, beyond the limited scope of summary inquiry envisaged under S. 103-AA of Representation of the People Act, 1976, irrational, unjustified and illegal---Supreme Court set aside the judgment passed by High Court and order passed by Election Commission, so also the entire result of the constituency and notification declaring respondent as returned candidate from that constituency---Supreme Court directed the Election Commission to hold fresh elections in the whole constituency on priority basis---Appeal was allowed.

Mian Jamal Shah v. The Member Election Commission, Government of Pakistan PLD 1966 SC 1; Election Commission .of Pakistan v. Javaid Hashmi PLD 1984 SC 396; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer N.A. 158 Nausharo Feroz 1994 SCMR 1299 and Yousuf Munir Sheikh v. Election Commission of Pakistan 2005 CLC 123 ref.

Khawaja Shams-ul-Islam, Advocate Supreme Court for Petitioner.

Abrar Hassan, Advocate Supreme Court and Abdul Samad Khan Ghori, Advocate-on-Record for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

Departmental Representative for Respondents Nos. 4 and 5.

Date of hearing: 26th November, 2009.

SCMR 2011 SUPREME COURT 1102 #

2011 SCMR 1102

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Asif Saeed Khan Khosa, JJ

Messrs PAKISTAN INTERNATIONAL AIRLINES CORPORATION---Appellant

Versus

BOARD OF TRUSTEES, EMPLOYEES' OLD-AGE BENEFITS and others---Respondents

Civil Appeal No. 95 of 2005, decided on 22nd April, 2011.

(On appeal from the judgment dated 5-12-2003 of the High Court of Sindh, Karachi passed in C.P. No. D-1442 of 1996).

(a) Employees' Old-Age Benefits Act (XIV of 1976)---

----S. 1(4)---Application of Employees' Old-Age Benefits Act, 1976---Scope---Flight Kitchen and Engineering Department of an Airline were got registered by the Airline itself under the Factories Act, 1934---Status as an "establishment" for the purposes of the Employees' Old-Age Benefits Act, 1976, of the said departments, could not be contested by the Airline.

(b) Employees' Old-Age Benefits Act (XIV of 1976)---

---Ss. 46 & 47---Exemption of an `industry' or 'establishment'---Scope of application of Ss.46 & 47 of the Employees' Old-Age Benefits Act, 1976---Federal Government having not ever exempted Flight Kitchen , and Engineering Departments of Airline, reliance upon different clauses of S.47, Employees' Old-Age Benefits Act, 1976 by the Airline was inapt---Principles.

The provisions of section 46 of the Employees' Old-Age Benefits Act, 1976 manifest that an 'industry' and an 'establishment' may be exempted by the Federal Government from all or any of the provisions of that Act but, in the present case, it has been conceded by the counsel for the appellant (Airline) that no such exemption has ever been granted by the Federal Government in favour of the appellant vis-a-vis its Flight Kitchen and Engineering Department. Whole-hearted reliance placed by the counsel for the appellant upon different clauses of section 47 of that Act was inapt and the reasons for that is that the provisions of section 47 deal with non-application of the provisions of the Employees' Old-Age Benefits Act, 1976 to some of the "persons" who are "employed" "in the service of" different departments, institutions or bodies specified in that section and the provisions of that section are not relevant to the "employers" of the relevant "industry" or "'establishment". An appropriate example in this respect would be that of an employee required under section 9B of that Act to pay a monthly contribution but by virtue of the provisions of section 47 that requirement of section 9B would not be applicable to his case if he is in the service of or employed in any of the departments, institutions or bodies specified in that section. Upon a plain reading of the various provisions of that Act there was no manner of doubt that whereas section 46 of that Act pertains to exemption to be granted by the Federal Government to an "establishment" or "industry" the provisions of section 47 of the Act do not relate to the employers of any "establishment" or "industry" but they only relate to the "persons" employed who were otherwise to be subjected to the requirements of that Act. As the mainstay of the arguments of the counsel for the appellant (Airline) was different provisions of section 47 of the Employees' Old-Age Benefits Act, 1976 and as the provisions of section 47 of that Act have no application to the case of the appellant, therefore, no further discussion of the matter was required.

Salman Aslam Butt, Advocate Supreme Court for Appellant.

Tariq Bilal, Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-Record for Respondents Nos. 1 and 2.

Dil Muhammad Khan Alizai, Deputy Attorney-General on Court's Notice.

Date of hearing: 19th April, 2011.

SCMR 2011 SUPREME COURT 1107 #

2011 SCMR 1107

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Jawwad S. Khawaja, JJ

Mst. PARVEEN AKHTAR---Petitioner

Versus

NIAZ ALI and another---Respondents

Criminal Petition No. 451-L of 2008, decided on 4th January, 2010.

(On appeal from the order of the Lahore High Court, Lahore dated 22-9-2008 in Criminal Miscellaneous No. 1 of 2008 in Criminal Appeal No. 933 of 2007).

Criminal Procedure Code (V of 1898)---

---S. 426---Penal Code (XLV of 1860), S. 302(b)---Constitution of Pakistan, Art. 185(3)--- Qatl-e-amd---Suspension of sentence by appellate Court---Scope---Old age and accused having ailment like arthritis, not good grounds for grant of bail---Accused had been attributed effective fire shots on the person of the deceased---Order under S.426, Cr.P.C. was passed without notice to the complainant party---When notice to the convicts was issued by High Court for enhancement of their sentence to death, it was inappropriate to suspend the sentence for imprisonment for life of the accused--Supreme Court converted the petition for leave to appeal into appeal and set aside the impugned order and bail granted to the convict was recalled.

Ch. Farooq Haider, Advocate Supreme Court for Petitioner.

Basharatullah Khan, Advocate Supreme Court for Respondent.

Mian Asif Mumtaz, D.P.-G, Punjab for the State.

Date of hearing: 4th January, 2010.

SCMR 2011 SUPREME COURT 1110 #

2011 SCMR 1110

[Supreme Court of Pakistan]

Present: Javed Iqbal and Anwar Zaheer Jamali, JJ

KHALID MEHMOOD---Petitioner

Versus

THE STATE-Respondent

Jail Petition No. 279 of 2010, decided on 31st March, 2011.

(On appeal from the judgment dated 3-5-2010 Lahore High Court, Bahawalpur Bench, Bahawalpur in Criminal Appeal No. 229 of 2005).

Penal Code (XLV of 1860)---

----Ss. 306(c), 307 & 308---Constitution of Pakistan, Art.185(3)---Qatl-e-amd not liable to Qisas---Sentence---Contentions of the counsel of accused/convict were that sentence of death could not have been awarded by way of Qisas and the Trial Court as well as the High Court had not diverted their attention to the relevant provisions as enumerated in sections 306(c), 307 and 308, P.P.C. and that the matter may be remanded so that legal proposition could be dilated upon and decided which had been ignored causing serious prejudice against the petitioner---Supreme Court granted leave, inter alia, to consider the contentions and converted the petition into appeal.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Sher Await, Additional Prosecutor-General for the State.

SCMR 2011 SUPREME COURT 1111 #

2011 SCMR 1111

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk and Sarmad Jalal Osmany, JJ

TAJ MUHAMMAD AFRIDI---Appellant

Versus

PRINCIPAL SECRETARY TO THE PRESIDENT SECRETARIAT and others---Respondents

Civil Appeal No. 293 of 2010, decided on 6th April, 2011.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad dated 9-4-2009 in Appeal No. 44(P) CS of 2009).

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal to Service Tribunal---Limitation---Limitation for filing appeal against final order being 30 days in absence of any provision providing thereagainst departmental appeal, review or representation---In presence of rules providing departmental appeal, review or representation, aggrieved civil servant could not file appeal before Tribunal without first filing departmental appeal, review or representation and before expiry of period of 90 days of such appeal or review.

(b) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 9 & 10---Appeal to Service Tribunal---Limitation---From date of communication of order, aggrieved civil servant could prefer either representation to prescribed authority or appeal to Tribunal---In case of non-receipt or non-communication of any decision to civil servant by prescribed authority within 60 days of filing of representation, civil servant could prefer appeal to Tribunal within 30 days of expiry of such period of 60 days i.e., civil servant having 90 days (60 + 30 days) from submission of representation to file appeal before Tribunal---Principles.

Zafar Iqbal v. WAPDA 1995 SCMR 16; Chief Engineer (North) v. Saifullah Khan Khalid 1995 SCMR 776; Anwar Muhammad v. General Manager Pakistan Railways 1995 SCMR 950; Muhammad Rafique v. Pakistan Telecommunication Company Ltd. 2008 SCMR 551 and Secretary Health, Government of Punjab v. Dr. Shahzad Ali Bukhari 2004 PLC (CS) 483 ref.

Tanveer Hussain v. Divisional Superintendent, Pakistan Railways PLD 2006 SC 249 rel.

----S. 4---Removal from Service (Special Powers) Ordinance (XVII of 2000), S. 10---Appeal to Service Tribunal---Limitation---Provisions of S. 4 of Service Tribunals Act, 1973 and S. 10 of Removal from Service (Special Powers) Ordinance, 2000 being distinct would be construed accordingly.

Shoaib Shaheen, Advocate Supreme Court for Appellant.

Haji M. Zahir Shah, Advocate Supreme Court/Advocate-on-Record for Respondent No. 3.

Moulvi Anwarul Haq, A.-G.P. on Court Call.

Date of hearing: 6th April, 2011.

SCMR 2011 SUPREME COURT 1117 #

2011 SCMR 1117

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Anwar Zaheer Jamali, JJ

Civil Appeal No. 318 of 2009

(On appeal from judgment of Islamabad High Court,' Islamabad dated 27-5-2008, passed in W.P. No. 1562 of 2003).

PAKISTAN' TELEVISION CORP. LTD.---Appellant

Versus

CAPITAL DEVELOPMENT AUTHORITY and others---Respondents

Criminal Original Petition No. 108 of 2010

(Petition for initiation of contempt proceedings against respondent).

CAPITAL DEVELOPMENT AUTHORITY through Chairman---Petitioner

Versus

Z1A-UR-REHMAN, DEPUTY CONTROLLER, PTV CORP. LTD. ---Respondent

Civil Appeal No. 318 of 2009 and Criminal Original Petition No. 108 of 2010, decided on 7th April, 2011.

Capital Development Authority (Imposition of Taxes) Rules, 1981---

----R. 6(1)---Capital Development Authority Ordinance (XXIII of 1960), S. 15-A---Municipal Administration Ordinance (X of 1960), Ss. 33 & 34---S.R.O. 24(I)/2001, dated 11-1-2001---Constitution of Pakistan, Arts. 165 & 165-A---Taxation and exemption from tax---Notice issued by Capital Development Authority (CDA) demanding property tax from Pakistan Television Corporation on its immovable properties situated within territorial limit of Capital Development Authority---PTV's claim to be exempt from levy of such tax in terms of S.R.O. 24(1)/2001, dated 11-1-2001 for being wholly owned, administered and managed by Federal Government---Validity---Para. 4(6) of the S.R.O. provided about exemption of buildings and land vesting in Federal or Provincial Government from levy of such tax while excluded benefit of such exemption to public and private corporations---PTV by its nature was a commercial venture and its legal status was that of a listed Public Limited Company and by fiction of law a juristic person to hold properties in its own name---Hundred per cent shareholdings of PTV did not vest in Federal Government despite having dominating hand in all administrative affairs of PTV---Articles of Association of PTV provided that share capital and assets including its immovable properties subjected to such tax were owned by PTV itself and not Federal Government---Appeal was dismissed in circumstances.?

Muhammad Aslam Saleemi v. Pakistan Television Corporation PLD 1977 Lah. 852; Sindh Industrial Trading Estate Ltd. v. Central Board of Revenue PLD 1975 Kar. 128; Central Board of Revenue v. SITE PLD 1985 SC 97; Union Council, Ali Wahan, Sukkur v. Associated Cement (Pvt.) Limited 1993 SCMR 469; Bilquis Anwar Khan v. Pakistan 2001 SCMR 809 and Tures Hotel, Islamabad v. Capital Development. Authority 2006 SCMR 1738 ref.

Province of N.-W.F.P. v. Pakistan Telecommunication Corporation PLD 2005 SC 670 rel.

Aftab Ahmed Khan, Advocate Supreme Court for Appellant/PTV.

Mian Muhammad Hanif, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No. 1/CDA.

Ex parte for Respondent No.2.

Date of hearing: 7th April, 2011.

SCMR 2011 SUPREME COURT 1127 #

2011 SCMR 1127

[Supreme Court of Pakistan]

Present: Tariq Parvez, Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

MUHAMMAD HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 136 of 2009, decided on 9th May, 2011.

(On appeal from the judgment/order dated 27-2-2007 passed by Lahore High Court, Lahore in Criminal Appeal No. 1553 of 2001 and Murder Reference No. 591 of 2001).

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 103---Qatl-e-amd---Reappraisal of evidence---Circumstantial evidence---Recovery memos, preparing in police station---Benefit of doubt---Death penalty awarded to accused by Trial Court was maintained by High Court---Validity---Dead body of deceased was recovered from the house of another person for which no evidence was led that the house was on rent with accused---Recovered articles like driving licence, etc. were recovered from the room wherein police constables' had entered and they came out with bundle and the articles were taken into possession by preparing. recovery memos in police station---Recovery memos were attested by attesting witnesses in police station---Such recovery memos had no legal value because of violation of mandatory provision of S.103, Cr.P.C. and for not being prepared on the spot of recovery--Present case being that of circumstantial evidence, therefore, as a rule of prudence, it was required that each piece of circumstantial evidence would be supported by independent corroboration, which by itself was sufficient to establish the guilt---Each circumstance was to be connected with each other to make one complete chain, without there any broken link---There were completely broken links of chain to connect the accused with the commission of murder of deceased, therefore, he was entitled to benefit of doubt---Supreme Court set aside the conviction and sentence awarded to accused by the courts below and he was acquitted of the charge---Appeal was allowed.

M. Shafi Mughal, Advocate Supreme Court for Appellant.

M. Siddiqui Baloch, D.P.-G. for the State.

Date of hearing: 9th May, 2011.

SCMR 2011 SUPREME COURT 1133 #

2011 SCMR 1133

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Anwar Zaheer Jamali and Amir Hani Muslim, JJ

MUHAMMAD IKRAM and another---Petitioners

Versus

THE STATE---Respondent

Jail Petition No. 582 of 2010 and Criminal Petition No. 642 of 2010, decided on 22nd April, 2011.

(On appeal against the judgment dated 28-10-2010 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No. 115 of 2008, M.R. No. 12 of 2008 and Criminal Revision No. 38 of 2008).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Reappraisal of evidence---Interested witness---Scope---Relationship with deceased---Crime empty, recovery from spot---Sentence, reduction in---Extenuating circumstances---Accused was convicted under S. 302(b), P.P.C. and was sentenced to imprisonment for life---Plea raised by accused was that eye-witnesses were relatives of deceased, therefore, they were interested witnesses---Validity---Complainant and his sister were natural witnesses as the occurrence took place inside the house where they were residing---Both eye-witnesses were put to the test of cross-examination but their testimony remained unshattered---Close relationship of prosecution witnesses with deceased did not make them "interested witnesses"---Ocular testimony furnished by both the eye-witnesses who were son and daughter of deceased was confidence inspiring and the same was consistent with medical evidence---Two crime empties were recovered from the spot on the day of occurrence while crime weapon was recovered on the pointation of accused who was arrested few days after the occurrence and report of Forensic Science Laboratory was positive---High Court was justified in maintaining the conviction of accused---Contents of F.I.R. lodged by complainant suggested that accused and deceased exchanged hot words, before the accused fired at the deceased and such circumstances could be held to be extenuating circumstances, which called for commutation of sentence of accused---Supreme Court did not find any infirmity in the judgment passed by High Court and the same was maintained---Leave to appeal was refused.

Talib Hussain v. The State 2009 SCMR 825 ref.

Abid Hussain v. The State PLD 1994 SC 641 and Rehmat Ali v. The State 1983 SCMR 922 fol.

Sardar M. Ishaq Khan, Senior Advocate Supreme Court for Petitioner (in J.P. No. 582 of 2010 also for Res. No. 1 in Criminal Petition No. 642 of 2010).

Mujeeb-ur-Rehman, Advocate Supreme Court for Petitioner (in Criminal Petition No. 642 of 2010).

Mazhar Sher Awan, Additional P.-G. for the State.

Date of hearing: 22nd April, 2011.

SCMR 2011 SUPREME COURT 1137 #

2011 SCMR 1137

[Supreme Court of Pakistan]

Present: Javed Iqbal, Asif Saeed Khan Khosa and Amir Hani Muslim, JJ

MUHAMMAD FAZAL and others---Petitioners

Versus

SAEEDULLAH KHAN and others---Respondents

Civil Petition No. 1251 of 2010, decided on 6th April, 2011.

(On appeal from the order dated 1-3-2010 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in C.M. No. 1275 of 2009 in Intra Court Appeal No. Nil of 2009).

Illegal Dispossession Act (XI of 2005)---

----Preamble---Constitution of Pakistan, Art. 12(1)---Protection against retrospective punishment---Alleged dispossession had come about in the year 2002, i.e. about three years before introduction of the Illegal Dispossession Act, 2005---Held, penal provisions contained in the Illegal Dispossession Act, 2005 could not be given retrospective effect in view of Art.12(1) of the Constitution and, thus, the said Act had no application to the present case---Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423 overruled by Dr. Muhammad Safdar v. Edward Henry Louis PLD 2009 SC 404.

Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423 overruled by Dr. Muhammad Safdar v. Edward Henry Louis PLD 2009 SC 404.

Syed Zafar Ali Shah, Advocate Supreme Court for Petitioners.

Shaukat Aziz Siddiqui, Advocate Supreme Court for Respondent No. 1.

Saeed Yousaf Khan, Additional Advocate-General for Respondent No. 2.

Date of hearing: 6th April, 2011.

SCMR 2011 SUPREME COURT 1139 #

2011 SCMR 1139

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Jawwad S. Khawaja and Rahmat Hussain Jafferi, JJ

GOVERNMENT OF PUNJAB, HOME DEPARTMENT and another---Petitioners

Versus

Hafiz MUHAMMAD SAEED and others---Respondents

Civil Petitions Nos. 1180 and 1184 of 2009, decided on 25th May, 2010.

(On appeal from the judgment of the Lahore High Court, Lahore dated 2-6-2009 passed in W.P. No. 6208 of 2009).

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

---Ss. 3 & 26---Constitution of Pakistan, Arts. 185(3)---Preventive detention---Release of detenu by order of High Court---Validity---Absence of any complaint against detenu and his non-involvement in any activity necessitating preventive dentention since his release would be sufficient to show that no cause existed to put him in preventive detention---Reversal of order of High Court and ordering detention of respondent on basis of orders passed by authority more than a year ago would not be legally warranted---Issue of preventive detention was no longer alive---Supreme Court refused to grant leave to appeal in circumstances.

Saeed Yousaf, Additional A.-G. Punjab for Petitioners (in C.P. No. 1180 of 2009).

K. K. Agha, Additional A.-G. for Pakistan and Ch. Muhammad Akram, Advocate-on-Record for Petitioners (in C.P. No. 1184 of 2009).

A.K. Dogar, Advocate Supreme Court for Respondents Nos.1 to 2 (in both cases).

Date of hearing: 25th May, 2010.

SCMR 2011 SUPREME COURT 1142 #

2011 SCMR 1142

[Supreme Court of Pakistan]

Present: Tariq Parvez, Chairman, Mian Saqib Nisar, Asif Saeed Khan Khosa, Dr. Fida Muhammad Khan and Dr. Muhammad Al-Ghazali, JJ

SHABBIR AHMED---Petitioner

Versus

THE STATE---Respondent

Jail Shariat Petition No. 27 of 2010, decided on 29th April, 2011.

(Against the judgment dated 22-6-2010 passed by Federal Shariat Court, Quetta, in Criminal Appeals Nos. 45 and 47-Q of 2009).

(a) Penal Code (XLV of 1860)---

----S. 392/34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)---Criminal Procedure Code (V of 1898), S. 103---Qanun-e-Shahadat (10 of 1984), Art. 22---Haraabah and robbery---Reappraisal of evidence---Test identification parade---Joint recovery---Witness of locality---Trial Court convicted both the accused under S. 392, P.P.C. and sentenced them to imprisonment for ten years each and the same was maintained by Federal Shariat Court---Validity---No regular test identification parade was held---Recovery of snatched motorcycle was made on the joint pointation of two accused---House wherefrom recovery of motorcycle was effected did not belong to co-accused as no person from the locality was associated during the course of alleged recovery---Complainant stated on oath before Trial Court that he had seen accused facing trial first time in the court and he had not identified the assailants at the time of occurrence---Complainant stated that he named and charged accused persons on the behest of police and that he did not make voluntary charge against them but was forced to do so by police---Complainant also stated that both accused were innocent---Evidence on record in no manner connected the accused as well as his co-accused and it was a case of no evidence---Conviction and sentence awarded to accused was set aside by Supreme Court and he was acquitted of the charge--Appeal was allowed.

(b) Penal Code (XLV of 1860)---

----S. 392/34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)---Haraabah and robbery---Appeal non-filing of---Administration of justice---Two accused were convicted and sentenced by Trial Court which was maintained by Federal Shariat Court---One accused who preferred appeal before Supreme Court was found innocent and he was acquitted of the charge---Effect---Role of co-accused, who did not file petition before Supreme Court but had challenged his conviction and sentence before Federal Shariate Court, was similar to that of the acquitted accused---Supreme Court extended benefit of doubt to the accused also who did not file petition against judgment passed by Federal Shariat Court---Accused was acquitted.

Mir M. Ghufran Khurshid, Advocate Supreme Court for Petitioner.

Tahir Iqbal Khattak, Additional P.-G. Balochistan for the State.

Date of hearing: 29th April, 2011.

SCMR 2011 SUPREME COURT 1145 #

2011 SCMR 1145

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Anwar Zaheer Jamali, JJ

MUHAMMAD JAMEEL AZEEM---Appellant

Versus

GHULAM SHABBIR and others---Respondents

Criminal Appeal No. 462 of 2010, decided on 1st December, 2010.

(On appeal from the order dated 20-9-2010 passed by the Lahore High Court, (Multan Bench) Multan passed in Criminal Revision No.257 of 2010).

Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), S. 227---Qatl-e-amd---Altering of charge---Pre-conditions---Recording of evidence---Trial Court amended the charge during trial but High Court set aside the order passed by Trial Court on the ground that recording of some evidence was needed before altering the charge---Validity---Trial Court was competent to amend the charge if circumstances so justified, subject to one condition that it should have been done prior to the pronouncement of judgment in order to eliminate possibility of any prejudice to accused person---High Court had erred while holding that recording of some evidence would be needed prior to making any amendment in the charge because no such condition was laid down in the provisions enumerated in S. 227, Cr. P. C. ---Order passed by High Court was laconic and the same was set aside and that of Trial Court was restored---Appeal was allowed.

Nadir Shah v. The State 1980 SCMR 402; Machia and 2 others v. The State PLD 1976 SC 695 and Shahadat Khan v. Home Secretary to the Government of West Pakistan PLD 1969 SC 158 rel.

Ch. Afrasiab Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Respondents Nos. 1 and 2 in person.

Asjad Javed Ghural, Additional P.-G. for Respondent No. 3.

Date of hearing: 1st December, 2010.

SCMR 2011 SUPREME COURT 1148 #

2011 SCMR 1148

[Supreme Court of Pakistan]

Present: Javed Iqbal, Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

Sh. MUHAMMAD ABID---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 65 of 2011, decided on 5th May, 2011.

(Against judgment dated 20-7-2010 of Lahore High Court, Rawalpindi Bench, and Rawalpindi, passed in Criminal Appeals Nos. 176 of 2007, 78-J of 2010 and Murder Reference No. 336 of 2007).

Penal Code (XLV of 1860)---

----S. 302(b)/34---Qatl-e-Amd---Reappraisal of evidence---Common intention---Vicarious liability---Matching of empties---Trial Court awarded death sentence on two counts to the accused and the same was maintained by High Court---Plea raised by accused was that it was not clear from evidence as to whose shot among the accused persons was fatal---Validity---Eye-witnesses were not inimical to accused and they did not falsely depose against him---In ocular account, it was stated by eye-witnesses that all assailants, including the accused caused injuries to deceased by firing at them from the front side---Medical evidence, as a whole, was corroborated by the ocular version of prosecution---Crime empties were secured by Investigating Officer from the place of occurrence and parcel of empties was delivered in the office of Forensic Science Laboratory on the same day, whereas crime weapon was recovered eleven days later during investigation from the residence of accused on his pointation after dispatch of parcel of empties to the concerned. office---According to Forensic Science Laboratory report, crime empties were fired from the pistol recovered on the pointation of accused---Out of thirteen crime empties of .30 bore pistol secured from the place of occurrence, five were fired from the pistol recovered from the accused; it was very difficult for complainant and eye-witnesses to give account of each fire specifying that whose fire hit on which part of the bodies of deceased, when indiscriminate firing was made by accused and absconding co-accused---Once it was found that accused persons had common intention to commit crime, it was immaterial as to what part was played by whom, as vicarious liability was that who had stood together, must have fallen together---Question as what injuries were inflicted by a particular accused in cases to which S. 34, P.P.C. applied was immaterial---Principle underlying S. 34, P.P. C. being that where two or more persons acted with a common intention each was liable for the act committed as if it had been done by him alone---Trial Court as well as High Court believed the ocular evidence in the case which found confidence inspiring and Supreme Court did not find any reason to disagree with appreciation of evidence by two courts below---Appeal was dismissed.

Ch. Muhammad Hussain, Advocate Supreme Court for Appellant.

Ch. Zubair Ahmed Farooq, Additional P.-G. for the State.

Date of hearing: 5th May, 2011.

SCMR 2011 SUPREME COURT 1153 #

2011 S C M R 1153

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Anwar Zaheer Jamali

and Amir Hani Muslim, JJ

MUMRAIZ---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 553 of 2010, decided on 20th April, 2011.

(On appeal against the judgment dated 12-10-2010 of the Lahore High Court, passed in Criminal Appeal No. 162-J of 2005, Criminal Revision No. 494 of 2005 and Murder Reference No. 454 of 2005).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Re-appraisal of evidence---Double murder---Motive, failure to prove---Reduction in sentence---Plea raised by accused was that prosecution had failed to prove motive, therefore, capital punishment could not be awarded to him---Validity---Inadequacy or weakness or failure to prove motive by prosecution was immaterial to award conviction---Insufficiency or motive being shrouded in mystery could not be considered as circumstances non-awarding normal penalty of death to a murderer or to reduce sentence of death to lesser punishment---Ocular evidence corroborated medical evidence and testimony of two eye-witnesses fully supported prosecution version in which prosecution witnesses had categorically attributed murder of both the deceased to accused---Presence of eye-witnesses at place of occurrence was natural and was fully explained---Supreme Court did not find legal infirmity either in judgment of High Court or in judgment of Trial Court nor there was any misreading or non-reading of material piece of evidence by both the Courts, which could warrant interference by Supreme Court---Appeal was dismissed.

Talib Hussain v. The State 2009 SCMR 825 ref.

Zulfiqar Ali v. The State 2008 SCMR 796; Syed Hamid Mukhtar Shah v. Muhammad Azam 2005 SCMR 427; Hameed Khan alias Hamedi v. Ashraf Shah 2002 SCMR 1155 and Nasir Ahmed v. The State 2009 SCMR 523 rel.

Muhammad Ghufran Khurshid Imtiazi, Advocate Supreme Court for Petitioner.

Mazhar Sher Awan, Additional P.-G., Punjab for the State.

Date of hearing: 20th April, 2011.

SCMR 2011 SUPREME COURT 1157 #

2011 S C M R 1157

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Tariq Parvez, JJ

MUHAMMAD ASLAM---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 462 of 2009, decided on 17th December, 2009.

(On appeal against the judgment dated 25-5-2009 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur, in Criminal Appeal No. 1-J/ATA/2009/BWP).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Independent eye-witnesses of the occurrence had no animosity or ill-will against the accused to falsely implicate him in the case---Recovery of crime empty from the spot, recovery of pistol at the instance of accused from his house and the positive report of Forensic Science Laboratory had supported the ocular evidence---Headlights of the car were sufficient for identification of accused, particularly when he was known to the witnesses---Accused while committing an offence of cutting Government trees with a saw finding himself to have been detected, had resorted to firing at the deceased, who was a young official of Forest Department and was performing his duties to protect the Government property---Act of accused did not call for any leniency even in the matter of his sentence---Leave to appeal was refused to accused by Supreme Court in circumstances.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Shahid Abbasi, D.P.-G. for the State.

SCMR 2011 SUPREME COURT 1160 #

2011 S C M R 1160

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

Ch. ALI HASSAN---Appellant

Versus

PROVINCE OF THE PUNJAB and others---Respondents

Civil Appeal No. 700 of 2007, decided on 20th December, 2010.

(On appeal from the judgment dated 6-11-2001 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Civil Revision No.336 of 1992).

Civil Procedure Code (V of 1908)---

----O. VI, R.1---Pleadings---Plaintiff could not maintain suit against one of defendants against whom neither a case was set up in plaint nor did ask for any relief---Illustration.

Sh. Naveed Shahryar, Advocate Supreme Court for Appellant.

Shahid Mobeen, Additional A.-G. for Respondents Nos.1 and 2.

Sarfraz Hussain, Advocate Supreme Court for Respondent No.3.

SCMR 2011 SUPREME COURT 1162 #

2011 S C M R 1162

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Mahmood Akhtar Shahid Siddiqui

and Amir Hani Muslim, JJ

QADIR BAKSH (Deceased) through L.Rs.---Petitioner

Versus

ALLAH DEWAYA and another---Respondents

Civil Petition No. 1980-L of 2010, decided on 27th April, 2011.

(On appeal from judgment dated 14-10-2010 of the Lahore High Court, Multan Bench, passed in R.S.A. No.6 of 1999).

(a) Civil Procedure Code (V of 1908)---

----O. XX, R.5---Wisdom behind R.5 of O.XX, C.P.C. is that the Trial Court and the first Appellate Court should record finding on all the points, and non - recording of finding on each and every issue would not be fatal to the judgment on the strength of O.XX, R.5, C.P.C.

(b) Civil Procedure Code (V of 1908)---

----O. XIII, R.4---Document having been produced and exhibited without any objection, cannot be challenged either in appeal or before any other forum superior in hierarchy.

Ch. Muhammad Iqbal, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 27th April, 2011.

SCMR 2011 SUPREME COURT 1165 #

2011 S C M R 1165

[Supreme Court of Pakistan]

Present: Tariq Parvez, Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

IFTIKHAR MEHMOOD and another---Appellants

Versus

QAISER IFTIKHAR and others---Respondents

Criminal Appeals Nos. 160 and 161 of 2002, decided on 3rd May, 2011.

(On appeal from the judgment dated 18-9-2001 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeals Nos.223-T and 249-T of 2000).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether lesser sentence of life imprisonment awarded by High Court on the ground that prosecution failed to prove the motive was not contrary to law laid down by Supreme Court.

Moazam Shah v. Mohsin Shah and others PLD 2001 SC 458 rel.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Motive---Scope---Quantum of sentence---Motive is not sine qua non for the proof of commission of crime and at time motive is not known to any other person, other than the deceased or accused, which can never surfaced on the record---Motive is always very relevant to determine quantum of sentence that might be awarded to a person against whom charge of murder is proved.

----S. 302(b)---Qatl-e-amd---Reappraisal of evidence---Motive, failure to prove---Quantum of sentence---Mitigating circumstances---Death sentence awarded to accused was converted into imprisonment for life by High Court only on the ground that prosecution failed to prove any motive against the accused---Validity---Motive was always relevant for commission of crime, as it was the reason for which accused had taken the law into his hands and committed the crime---Motive was in fact the foundation of structure which ultimately culminated into accomplishment of crime---When motive was so basic and relevant for commission of crime, it would have bearing in every case while determining quantum of sentence---Motive set up in F.I.R. and reiterated at trial stage was hot discussion on religious issues between the parties---Religious feelings had always caused an agitation in mind if something was said against belief of a person and under such impulse when there was not only hot discussion but also there was exchange of abuses, the crime was committed under the compelling circumstances, therefore, death sentence was rightly converted by High Court to life imprisonment---If discretion in awarding lesser sentence was exercised by High Court for the stated reason, the same were not artificial or against the record and were sufficient to convert death sentence into life imprisonment---Supreme Court declined to interfere in the sentence altered by High Court---Appeal was dismissed.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellants (in Cr. A. 160 of 2002).

Kh. Sultan Ahmed, Senior Advocate Supreme Court for Appellants (in Cr. A. 161 of 2002).

Mazhar Sher Awan, Additional P.-G. Punjab for the State.

Date of hearing: 3rd May, 2011.

SCMR 2011 SUPREME COURT 1169 #

2011 S C M R 1169

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Nasir-ul-Mulk and Ch. Ijaz Ahmed, JJ

NISAR AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 132 of 2008, decided on 22nd October, 2009.

(Against the judgment dated 26-9-2006 of the Lahore High Court, Lahore, passed in Criminal Appeal No. 377-J of 2001 and Murder Reference No. 617 of 2001).

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appraisal of evidence---Sentence, reduction in---Defence had not denied the killing of deceased by the accused---Accused, however, had claimed to have killed the deceased while acting in his defence, when the deceased trespassed into his house having designs on him---Defence plea was a mere assertion and the same could not justify the murder of the deceased at the hands of the accused---Since the circumstances leading to the killing of the deceased were not discernible and since the prosecution had not taken the court into confidence, allowing the accused to be hanged to death was not safe---Conviction of accused was maintained, but his death sentence was altered to imprisonment for life in circumstances.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Syed Ali Imran, D.P.-G. for the State.

SCMR 2011 SUPREME COURT 1171 #

2011 S C M R 1171

[Supreme Court of Pakistan]

Present: Mehmood Akhtar Shahid Siddiqui, Tariq Parvez and Mian Saqib Nisar, JJ

SALEEMUDDIN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 559 and 560 of 2006, decided on 22nd March, 2011.

(On appeal from the judgment/order dated 3-6-2006 passed by High Court of Sindh, Karachi in Spl. AT Jail Appeal No. 81 of 2002 and Confirmation Case No. 13 of 2002).

(a) Criminal trial---

----Sentence---Principle---Offender found guilty of commission of a crime is awarded sentence of imprisonment, which sentence is always considerably in consonance with gravity of offence---Certain offences are made punishable with death or imprisonment for life like murder, gang rape, hijacking etc.---Wherever, under Pakistan Penal Code, 1860, sentence of death is provided for a crime, there is always alternate punishment in terms of imprisonment for life.

(b) Penal Code (XLV of 1860)---

----Ss. 302(a) & 302(b)---Qatl-e-amd---Sentence---Discretion of Court---Principle---In case of application of S. 302(a), P.P.C., no discretion is left with Court while awarding sentence, whereas in case of S. 302(b), P.P.C., the Court is left with option to award either death sentence or imprisonment for life.

----Fixed sentences---Scope---Fixed sentences are based on the principle of non-discrimination---Whoever the offender may be, if he is found guilty, he has to be awarded punishment fixed by law, irrespective of his social status, it does not make any difference between the poor and the rich and a common man and any high-up with influence---Gravity of punishment/sentences is always dependent upon gravity of the offence.

(d) Penal Code (XLV of 1860)---

----S. 365-A/34---Anti-Terrorism Act (XXVII of 1997), S.7(ii)---Abduction for ransom---Re-appraisal of evidence---Sentence, reduction in---Benefit of doubt---Sentence, quantum of---Previous non-convict---Four persons were awarded death sentence for abduction of two persons for ransom---Beating by accused to abductees was alleged, when they were kept for one night in captivity but there was no medical evidence that any physical injury was caused to any of the abductees and period of detention was very short i.e. one night only---Nothing was available to show that after receiving ransom amount, how and to what extent each one of the accused persons received his respective share in ransom money---Prosecution led no evidence to show that accused persons were previously involved in such like crimes and were ever convicted for any offence---Applying test of benefit of doubt in determining quantum of sentence, Supreme Court altered the sentences of accused persons from death to imprisonment for life.

Israr Ali v. State 2007 SCMR 525 rel.

Muhammad Munir Piracha, Advocate Supreme Court for Appellants (in Criminal Appeal No. 559 of 2006).

Raja Abdul Ghafoor, Advocate Supreme Court/Advocate-on-Record for Appellants (in Criminal Appeal No. 560 of 2006).

Zafar Ahmed Khan, Additional P.-G. Sindh for the State.

Date of hearing: 22nd March, 2011.

SCMR 2011 SUPREME COURT 1181 #

2011 S C M R 1181

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Anwar Zaheer Jamali, JJ

QAISER MASUD---Appellant

Versus

SECRETARY LAW AND PARLIAMENTARY AFFAIRS, GOVERNMENT OF PUNJAB and another---Respondents

Civil Appeal No. 905 of 2009, decided on 8th April, 2011.

(On appeal from judgment of Punjab Service Tribunal, Lahore dated 25-7-2008 passed in Appeal No. 2337 of 2007).

(a) Civil service---

----Probational appointment against clear vacancy--- Expiry of probation period---Effect---Civil servant, if not removed from service before expiry of probation period, would stand automatically confirmed.

(b) Federal Investigation Agency (Appointment, Promotion and Transfer) Rules, 1975---

----R. 3---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R. 21--- Probational appointment--- Employee serving FIA for 14 years after completion of probation period stood automatically absorbed as a permanent and confirmed employee of FIA.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Appellant.

Saeed Yousaf Khan, Additional Advocate-General, Punjab for Respondent No. 1.

Khalid Ismail Abbasi, Deputy Attorney-General, Arshad Ali Chaudhry, Advocate-on-Record and Jaffar Shah, Dy. Director (Law) for Respondent No.2.

Date of hearing: 8th April, 2011.

SCMR 2011 SUPREME COURT 1190 #

2011 S C M R 1190

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed, Anwar Zaheer Jamali and Asif Saeed Khan Khosa, JJ

IRSHAD AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 663 of 2006, decided on 22nd March, 2011.

(On appeal from the judgment dated 17-2-2006 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Criminal Appeal No. 206 of 2002 and Murder Reference No. 74 of 2002).

(a) Penal Code (XLV of 1860)---

----S.302(b)---Criminal Procedure Code (V of 1898), S.174---Qatl-e-amd---Re-appraisal of evidence---Inquest report---Related and chance witness---Benefit of doubt---Ocular account and medical evidence---Trial Court as well as High Court convicted the accused under S.302(b), P.P.C. and sentenced him to death---Both eye-witnesses were not only related to deceased but they were also chance witnesses---Complainant was father of deceased whereas other eye-witness was brother of complainant and paternal uncle of deceased---Occurrence had taken place far away from the houses of eye-witnesses and they had statedly seen the occurrence when they were in search of deceased---Investigating Officer stated before Trial Court that upon his first visit to the spot, he had found dead body of deceased at place of occurrence and after preparing inquest report dead body was sent by him to mortuary for its post-mortem examination---Investigating Officer stated nothing about seeing any hatchet stuck in the head of dead body and even in inquest report, the Investigating Officer had said nothing about finding any hatchet stuck in the head of dead body---Doctor who performed post mortem report stated before Trial Court that at the time of conducting post-mortem examination, he had taken a hatchet out of the head of dead body wherein it was found stuck at that time---One police officer had subsequently produced that taken-out hatchet before Investigating Officer after post-mortem examination of dead body---Prosecution had failed to prove its case against accused beyond reasonable doubt---Supreme Court set aside the conviction and sentence awarded to accused by the Courts below and he was acquitted of the charge by extending benefit of doubt to him---Appeal was allowed.

(b) Penal Code (XLV of 1860)---

----S. 302--- Qatl-e-amd--- Post-mortem examination--- Delay---Presumption---Delay in post-mortem examination is generally suggestive of a real possibility that time was consumed by police in procuring and planting eye-witnesses and in cooking up a story for prosecution before preparing police papers necessary for getting a post mortem examination of dead body conducted.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Nemo for the State.

Date of hearing: 22nd March, 2011.

SCMR 2011 SUPREME COURT 1194 #

2011 S C M R 1194

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Anwar Zaheer Jamali and Tariq Parvez, JJ

Dr. R.A. SIYAL---Petitioner

Versus

FEDERATION OF PAKISTAN through the Secretary Establishment and others---Respondents

Civil Review Petition No. 194 of 2009, decided on 26th May, 2011.

(On review from the judgment/order of this Court dated 22-10-2009 passed in C.P. 1164 of 2009).

(a) Civil service---

----Appointments of persons holding current charge post---Proposal should be initiated and referred to Central Selection Board within a month and finalized within six months---Civil servant's plea that Central Selection Board had not adhered to the timelines and delay in his promotion was the fault of functionaries in not following the codel formalities---Validity---Codel formality, was for the in-house working of a department and it did not create any right in favour of the civil servant and even if it did, it was for the purpose of seniority etc. in a particular grade and the legal position remained that civil servant held the same status which was held by him until approval of his case by the Central Selection Board followed by due notification.

(b) Civil service---

----Allotment of plot under the Federal Government Employees Housing Scheme---Eligibility---Cut-off date for filing application was 15-11-2003---Application of civil servant for allotment under Category-I of the Scheme was not considered---Contention of civil servant was that he was promoted with immediate effect to BPS-20 by approval from Prime Minister dated 13-11-2003 and issuance of notification of the promotion dated 20-11-2003 was a mere ministerial procedural formality and any delay in notification was fault on part of the department thus his application for allotment of Category-I plot should have been entertained---Validity---Notification of promotion to BPS-20, dated 20-11-2003, was very clear and specific and promotion of civil servant took effect from date of notification and until such date he was neither entitled nor eligible to apply for the plot in Category-I.

Ahmad Latif Qureshi v. Controller of Examination PLD 1994 Lah. 3; Director, Social Welfare N.-W.F.P. v. Sadullah Khan 1996 SCMR 1350; Government of the Punjab v. Ghulam Sarwar Khan 1997 SCMR 515; Saghir Ahmad v. Province of Punjab PLD 2004 SC 261 and Abdur Rehman Shaukat v. Muhammad Akram Javed PLD 2004 Lah. 815 ref.

----Art. 188---Review of Supreme Court judgment---Scope---No factual or legal flaw having been pointed out by the petitioner in the judgment that was under review, review petition was dismissed.

Sahibzada Ahmed Raza Khan Qasuri, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 26th May, 2011.

SCMR 2011 SUPREME COURT 1198 #

2011 S C M R 1198

[Supreme Court of Pakistan]

Present: Javed Iqbal, Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

FEDERATION OF PAKISTAN through Secretary Establishment and others---Appellants

Versus

GHULAM SHABBIR JISKANI and others---Respondents

Civil Appeal No. 99 of 2011, decided on 12th May, 2011.

(On appeal from judgment of High Court of Sindh, Karachi dated 19-10-2010, passed in Constitutional Petition No. D-1859 of 2009).

Competitive Examination Rules (CSS), 2008---

----R. 11(i)---Constitution of Pakistan, Arts. 4, 25, 27(i) & 37(a)---Condition of aggregate marks incorporated in R.11(1) of the Competitive Examination Rules (CSS), 2008 was assailed by some candidates on the ground that said condition was either discriminatory or prejudicial to the interest of candidates from the rural areas of Sindh---Validity---If the number of unfilled vacancies during different years due to non-availability of qualified candidates was compared with the actual number of vacancies for each year, it was clear that its ratio was almost negligible---Such factual assessment coupled with details of performance of some of the candidates, left no doubt to hold that if anybody was to be blamed for the failure of the candidates in proceeding further to the next stage of their CSS Examination, they had to blame themselves for their inefficiency and incompetency rather than making baseless allegations of discrimination or violation of the spirit of Arts.27(1) and 37(a) of the Constitution---Rule/Policy making Authority had religiously followed Arts.4, 25, 27(1) & 37(a) of the Constitution in order to safeguard the interest of every citizen of the country as per the spirit of said constitutional provisions---Any grievance of the candidates to the contrary was dishonest, baseless and made with ulterior motive.

Federal Public Service Commission of Pakistan v. Syed Muhammad Afaq PLD 2002 SC 167 and Federation of Pakistan v. Aftab Ahmed Khan Sherpao PLD 1992 SC 723 ref.

Syed Mujtaba Haider Sherazi, Dy. Attorney-General along with Amin-ur-Rehman, Dy. Director, FPSC and Kamran Raffat, Assistant A.D. (Legal), FPSC for Appellants.

Munir A. Malik, Senior Advocate Supreme Court for Respondent No. 1.

Nemo for Respondents Nos. 2 to 15.

Date of hearing: 12th May, 2011.

SCMR 2011 SUPREME COURT 1209 #

2011 S C M R 1209

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Ghulam Rabbani, J

AHMAD YAHYA KHAN---Petitioner

Versus

HIGHER EDUCATION COMMISSION through Chairman and others---Respondents

Civil Petition No. 483 of 2011, decided on 6th May, 2011.

(On appeal from the judgment dated 24-2-2011 in W.P. No. 128 of 2011 passed by the Islamabad High Court, Islamabad).

Higher Education Commission Ordinance (LII of 2002)---

----S. 10---Higher Education Commission Employees (Recruitment) Rules, 2009---Constitution of Pakistan, Arts.199, 25 & 185(3)---Civil Service---Promotion---Constitutional petition under Art.199 before High Court---Maintainability---Leave to appeal was granted by Supreme Court to examine whether status of the departmental Rules duly approved by the Controlling Authority (Chief Executive of Pakistan) was required to be determined qua promotion that said Rules were not Statutory Rules; whether the petitioner had rightly invoked the jurisdiction of High Court under Art.199 for redressal of his grievance because of the reason that Commission was discharging its functions in connection with the affairs of the Federation and whether the petitioner, being one of its employees was entitled to seek protection of the constitutional provisions under Art. 25 etc.

Pakistan International Airlines Corporation v. Tanweer-ur-Rehman and others PLD 2010 SC 676 ref.

Raja Muhammad Asghar Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 6th May, 2011.

SCMR 2011 SUPREME COURT 1215 #

2011 S C M R 1215

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed, Anwar Zaheer Jamali and Asif Saeed Khan Khosa, JJ

Criminal Appeal No. 93 of 2010

(On appeal from Judgment of Peshawar High Court, Peshawar dated 8-3-2005 passed in Jail Criminal Appeal No. 721 of 2003).

Mst. TASLEEM BIBI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 486 of 2006

(On appeal from judgment of Peshawar High Court, Peshawar dated 8-3-2005 passed in Jail Criminal Appeal No. 721 of 2003).

MUHAMMAD RIASAT---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 93 of 2010 and Criminal Appeal No. 486 of 2006, decided on 25th March, 2011.

Penal Code (XLV of 1860)---

----Ss. 302(b)/34, 201---Criminal Procedure Code (V of 1898), S.161---Qatl-e-amd and causing disappearance of evidence of offence---Re-appraisal of evidence---Benefit of doubt---Delay in F.I.R.---Delay in recording statement of eye-witness---Widow of deceased was alleged to have murdered her husband by administering poison with the help of her co-accused with whom she alleged to have illicit relations and the only eye-witness of the occurrence was stated to be the minor daughter of deceased and the accused---Trial Court as well as High Court convicted the accused and sentenced them to imprisonment for life---Deceased before his death was hospitalized for treatment of diarrhoea in a conscious condition and remained under treatment for one day but during that period nowhere he made any allegation against any of the two accused about their role of administering poison to him---F.I.R. of the incident was lodged four days after the occurrence, without any plausible explanation, during which one prosecution witness played an active role---For the first time statement of only eye-witness of the occurrence was recorded before police ten days after the occurrence---Eye-witness who was aged 11 years, with normal prudence and who was stated to have full knowledge of the occurrence, particularly as regards mixing of poison in "Daal" offered by her mother for the second time to her deceased father, could not remain silent spectator and she could have immediately disclosed such fact to her deceased father before he ate such poisonous meal---Not only the story set up by prosecution was highly doubtful, improbable and weak but there were also material lacunas and flaws in the case of prosecution to prove commission of such offence by two accused beyond reasonable doubt---Benefit of doubt, arising out of such lacunas weaknesses in prosecution case should have been extended to accused, which for no cogent reason, both the courts below failed to extend---Supreme Court extended benefit of doubt to both the accused persons and acquitted them of the charge levelled against them---Appeal was allowed.

Malik Muhammad Kabir, Advocate Supreme Court for Appellants (in both appeals).

Nemo for the State (in both appeals).

Date of hearing: 25th March, 2011.

SCMR 2011 SUPREME COURT 1220 #

2011 S C M R 1220

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Asif Saeed Khan Khosa, JJ

CHIEF SECRETARY, GOVERNMENT OF PUNJAB and others---Petitioners

Versus

Malik ASIF HAYAT---Respondent

Civil Petition No. 1724-L of 2010, decided on 2nd March, 2011.

(On appeal from the judgment dated 1-7-2010 passed by Punjab Service Tribunal Lahore in Appeal No. 1059 of 2010).

(a) Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Rules of Business (Punjab), 1974, Sched. VII, Part-A, Sr.No.20---General Clauses Act (X of 1897), Ss. 21 & 24---Constitution of Pakistan, Art. 212(3)---Appeal---Assistant Sub-Inspector Police---Dismissal from service vide order dated 5-7-1994---Absence from duty, charge of---Rejection of appeal by Service Tribunal---Directive of Chief Minister issued after accepting mercy petition in June 2005 for reinstatement of appellant in service---Implementation of such directive by authority, completion of one year "D" Course by appellant and subsequent entering his name into list "E" and promotion to post of Sub-Inspector---Issuance of show-cause notice by authority after two years alleging appellant's reinstatement to be illegal---Withdrawal of such show-cause notice by authority during pendency of constitutional petition filed thereagainst by appellant and his subsequent promotion to rank of Inspector---Dismissal of appellant from service w.e.f. 5-7-1997 vide order dated 2-1-2002 on same ground---Acceptance of appellant's appeal by Service Tribunal---Validity---Termination from service could not be with retrospective effect, unless competent authority was expressly empowered in such regard by some statute or rules made thereunder---Rectification of wrong could not be made at any time as such practice would be dangerous for service structure---Action should have been initiated against those responsible for such wrong, which could not be rectified after a long period during which appellant had not only performed his duties diligently, but had also earned few promotions and risen to rank of Inspector---Such directive of Chief Minister was not liable to be implemented, but none had shown moral courage to resist same at relevant time--- Appellant had been reinstated in year 2005, while he had been dismissed finally on 2-1-2010 with retrospective effect i.e. on 5-7-1994---Authority had already exercised powers under S. 21 of General Clauses Act, 1897 by issuing show-cause notice, which had been withdrawn during proceedings pending in High Court---Such matter was closed once for all and could not be re-opened without any lawful justification---Order passed by a competent authority, if had taken effect and conferred a legal right, could not be rescinded subject to certain lawful exceptions---Supreme Court refused to grant leave to appeal, in circumstances.

Syed Sikandar Ali Shah v. Auditor-General of Pakistan 2002 SCMR 1124; Noor Muhammad v. Member Election Commission 1985 SCMR 1178; Noor Muhammad v. Muhammad Abdullah 1984 SCMR 1578; Dr. Muhammad Abdul Latif v. The Province of East Pakistan PLD 1964 Dacca 647 and Nawab Syed Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 rel.

(b) Civil service---

---Service could not be terminated with retrospective effect, unless competent authority was expressly empowered in such regard by some statute or rules made thereunder.

----Power of authorities to pass orders to retrace wrong steps taken by them---Scope.

There can hardly be any dispute with the rule that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i.e. the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights.

Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Chairman, Selection Committee v. Wasif Zamir Ahmad 1997 SCMR 15; Miss Safia Hameed v. Chairman, Selection Committee Medical College, Quetta and 6 others PLD 1979 Quetta 12; Secretary, Ministry of Finance v. Muhammad Himayatullah Farukh PLD 1969 SC 407; Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973 and Government of Sindh v. Niaz Ahmed 1991 SCMR 2293 rel.

Ch. Khadim Hussain Qaiser, Additional A.-G. and Muddasir Khalid Abbasi, A.A.-G. for Petitioners.

Pervaiz Inayat Malik, Advocate Supreme Court for Respondent.

Date of hearing: 2nd March, 2011.

SCMR 2011 SUPREME COURT 1227 #

2011 S C M R 1227

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Tariq Parvez, JJ

MAJID NAEEM---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No. 209 of 2011, decided on 17th May, 2011.

(On appeal from the judgment/order dated 3-5-2011 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Miscellaneous No. 403-B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/320/322---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd and rash and negligent driving---Bail, grant of---Death of five persons---Accused participated in a car race during which his care went out of control and five persons were killed---Plea raised by accused was that as the punishment for S. 322, P.P.C. was only diyat, therefore, he was entitled to bail---Validity---Every sane person was presumed to know the consequences of any act of his commission or omission---Person driving a motor car in a thickly populated busy bazaar of a city could not be allowed to drive the vehicle at a speed of his own choice because it would put life of the others at risk---Such person might claim benefit of bail although he had crushed a large number of people in a busy bazaar by driving at a speed which he knew was likely to endanger the life of others---Every act of rash or negligent driving by a person, neither could be condoned nor discretionary power of court could be exercised in his favour because through such act of rash and negligent driving, a man of ordinary prudent could understand the consequences of his act that a large number of people would lose their lives, such conduct of accused person had also to be kept in mind---Act of driving in busy bazaar or in a car race where hundreds of people were present or spectator, the crushing to death of large number of persons was not just "rash and negligent" driving but was a case of "extreme rash and extreme negligent" driving---There was a direct charge against the accused that he was driving the motor car by taking part in the car race and the car went out of control because of rash and negligent driving of accused as alleged, resulting in death of five persons and injuries to many others and because even the offence under S. 322, P.P.C. was not bailable and grant of bail was a discretionary relief, which could not be claimed as of right---Prima facie, because of nature of allegation levelled against the accused he was not entitled for grant of bail---Bail was refused.

Muhammad Nadeem v. The State 1998 MLD 1537 and Yousuf Khan v. The State 2000 PCr.LJ 203 ref.

Sardar M. Ishaq Khan, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 17th May, 2011.

SCMR 2011 SUPREME COURT 1233 #

2011 S C M R 1233

[Supreme Court of Pakistan]

Present: Tariq Parvez, Chairman, Mian Saqib Nisar, Asif Saeed Khan Khosa, Dr. Fida Muhammad Khan, and Dr. Muhammad Al-Ghazali, JJ

HAMID NADEEM---Appellant

Versus

THE STATE---Respondent

Criminal Shariat Appeal No. 15 of 2010 in Jail Shariat Petition No.50 of 2008, decided on 12th May, 2011.

(On appeal from the judgment dated 16-4-2008 and decided on 2-9-2008 of the Federal Shariat Court, Islamabad passed in Criminal Appeal No. 121-L of 2002 and Criminal Appeal No. 141-L of 2002).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 203-F---Leave to appeal was granted by Supreme Court to consider; whether it was a blind murder and pieces of evidence consisting of extra judicial confession before relative of deceased and recoveries were not confidence inspiring to prove a case against accused beyond reasonable doubt and particularly when evidence of prosecution regarding other two co-accused had been disbelieved by the courts.

(b) Criminal trial---

----Extra judicial confession---Principle---Conviction can be based on extra judicial confession when it is corroborated by other reliable evidence---Extra judicial confession is regarded as weak type of evidence by itself, utmost care and caution has to be exercised in placing reliance on such confession.

----Ss. 302(b) & 377---Criminal Procedure Code (V of 1898), S. 103---Qatl-e-amd and sodomy---Reappreaisal of evidence---Crime weapon---Custody unexplained---Accused was convicted by Trial Court and sentenced to imprisonment for life---Validity---Crime weapon which was recovered from accused on 8-7-2001, was handed over to prosecution witness which he deposited in the office of Forensic Science Laboratory on 16-7-2001, and that too with 5 live bullets for reason best known to him---Report of Forensic Science Laboratory had lost its sanctity especially in a case with a capital charge, where abundant precaution was urgently required for safe administration of justice---Recovery of clothes allegedly stained with blood of deceased were not matched with the blood of deceased and no positive report regarding that was available on record---Case of prosecution was doubtful and accused was entitled to get benefit thereof---Supreme Court set aside the conviction and sentence awarded to accused and acquitted him of the charge---Appeal was allowed.

Arshad Ali Chaudhry, Advocate Supreme Court for Appellant.

Malik Irfan, Additional Prosecutor-General, Punjab, Lahore for the State.

Date of hearing: 12th May, 2011.

SCMR 2011 SUPREME COURT 1239 #

2011 S C M R 1239

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tassaduq Hussain Jillani, Raja Fayyaz Ahmed and Anwar Zaheer Jamali, JJ

GOVERNMENT OF PUNJAB, through Chief Secretary and 3 others---Appellants

Versus

Sardar ZAFAR IQBAL DOGAR---Respondent

Civil Appeal No. 236 of 2006, decided on 2nd February, 2011.

(On appeal from judgment of Lahore High Court, Multan Bench, Multan dated 22-11-2005 passed in Writ Petition No. 2451 of 2003).

(a) Punjab Civil Servants Act (VIII of 1974)---

----S. 8-A---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 14-A---Constitution of Pakistan, Arts. 25, 199 & 185(3)---Constitutional petition---Prayer for second time out of turn promotion from rank of Inspector to rank of Deputy Superintendent of Police (DSP) on basis of recommendation of DIG Police---Ground of meritorious and gallantry performance of petitioner in combating terrorism---Non-compliance of recommendations of DIG as petitioner lacked two qualifications regarding his length of seven years service in rank of confirmed Inspector and passing of mandatory specialized training course for Inspector---Petitioner's plea that number of Constables and two of his colleagues Inspectors had been promoted to ranks of Head Constables and DSPs respectively, while he was declined recommended promotion---Grant of such prayer by High Court---Validity---Petitioner for such gallantry performance had earlier been promoted out of turn from rank of Sub-Inspector to rank of Inspector enabling him to supersede a large number of other Sub-Inspectors, who were much senior to him in Seniority List---Petitioner for his second time such gallantry performance had been granted some benefits/rewards, cash prize, Gallantry Police Medal coupled with Rs.2 lac---Out of turn promotion of officers of BSP-17 and above lay in domain of Provincial Selection Board---Promotion prayed for required fulfilment of mandatory qualifications and approval of competent authority, which were lacking---Petitioner's plea of discrimination would not justify his claim for out of turn promotion as one or any number of wrongful actions/favours, if any, could not be made basis to justify further wrongs on plea of equal treatment or non-discrimination, which could be challenged separately before some proper forum---Supreme Court set aside impugned judgment, but declined to remit petitioner's case to Selection Board for consideration, in circumstances.

Muhammad Nadeem Arif v. Inspector-General of Police 2010 PLC (C.S.) 924 = 2011 SCMR 408 ref.

Government of Punjab v. Raja Muhammad Iqbal 1993 SCMR 1814 rel.

(b) Constitution of Pakistan---

----Art. 25---Plea of equal treatment or discrimination---Scope---One or any number of wrongful actions/favours cold not justify further wrongs on basis of such plea---Principles.

Mudassar Khalid Abbasi, Assistant Advocate-General (Punjab). for Appellants.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Respondent.

Date of hearing: 8th December, 2010.

SCMR 2011 SUPREME COURT 1244 #

2011 S C M R 1244

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Asif Saeed Khan Khosa, JJ

Sardar MUHAMMAD ASHRAF (deceased) through LRs. and others---Appellants

Versus

GOVERNMENT OF N.-W.F.P. (now KPK) through Collector and others---Respondents

Civil Appeals Nos. 1226 of 2000, 1222 and 2076 of 2001, heard on 2nd March, 2011.

(On appeal from the judgment dated 31-5-2001 in R.F.A. No.24 of 1997, 6-7-2000 in R.F.A. No. 55 of 1993 and R.F.A. No.37 of 1993, passed by the Peshawar High Court, Abbottabad Bench).

(a) Land Acquisition Act (I of 1894)---

----S. 23---Determination of compensation---Acquired land being adjacent to an Industrial Estate and located within two main roads and at a distance of 1000/1100 feet from canal---Such land had potentiality for irrigation---Acquired land consisted of one compact block situated close to inhabited area having great potential value for industrial, commercial and residential colonies etc.---Grant of compensation by Authority on higher rates to landowners of other acquired land in adjoining area---Validity---Compensation of acquired land was enhanced keeping in view the circumstances.

Khalilur Rehman v. The Land Acquisition Collector, Abbottabad and another PLD 1990 Pesh. 88; Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164; Maqbool Ahmed Fatehally and others v. The Collector, District Lasbella and others 1992 SCMR 2342; The Land Acquisition Collector, Rawalpindi v. Lieut. General Wajid Ali Khan Burki PLD 1960 Lah. 469; Land Acquisition Collector-II, Tarbela Dam Resettlement Organization, WAPDA and 2 others v. Haji Hakim Khan and 41 others PLD 1976 Pesh. 50; North-West Frontier Province v. Shad Muhammad Khan and others 1983 CLC 2576; Liyar Khan v. Land Acquisition Collector/A.C., Swabi 2003 YLR 3287; Muhammad Nawaz Khan and another v. Government of N.-W.F.P. through Collector Mardan and others 2007 SCMR 1069; Commandant Indus Rangers and others v. Zaheer Muhammad Khan 2007 SCMR 1817; Land Acquisition Collector, Islamabad and another v. Alauddin and others PLD 2008 Pesh. 3; Collector of Land Acquisition, Abbottabad and others v. Alhaj Sardar Bahadur Khan and others 2009 SCMR 224; Land Acquisition Collector, National Highway Authority, Lahore and another v. Javed Malik and others 2009 SCMR 634; Land Acquisition Collector, Abbottabad and others v. Gohar-ur-Rehman Abbasi 2009 SCMR 771 and Province of Punjab through Collector, Bahawalpur and others v. Sh. Hassan Ali and others PLD 2009 SC 16 ref.

Banaras Khan and others v. Chairman, WAPDA and others PLD 1982 SC 100; Fazalur Rahman and others v. General Manager, S.I.D.B. and another PLD 1986 SC 158; Mrs. Gunj Khatoon and another v. The Province of Sindh through Secretary, Revenue Department, Karachi and another 1987 SCMR 2084; Siddiq and others v. The Deputy Commissioner, East Karachi and another 1988 SCMR 87; Malik Aman and others v. Land Acquisition Collector and others PLD 1988 SC 32 and Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164 rel.

(b) Land Acquisition Act (I of 1894)---

----S. 23--- Determination of compensation--- Factors requiring consideration stated.

While fixing the rate of compensation, the following plus and negative factors must be kept in mind:--

(i) The market rate of the land at the date of the publication of the Notification under section 4, subsection (1);

(ii) the damage sustained by the person interested by reasons of the taking of standing crops or trees, which may be on the land at the time of the Collector's taking possession thereof;

(iii) the damage (if any) sustained by the person interested at the time of the land, by reasons severing such land from his other land;

(iv) the damage (if any) sustained by the person interested at the time of the Collector's taking possession of the land by reason of the acquisition injuriously affecting his other property movable or immovable in any other manner or his earnings;

(v) if in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change;

(vi) the damage (if any) bona fide resulting from diminution of the profit of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land;

(vii) that an entry in the Revenue Record as to the nature of the land may not be conclusive, for example land may be shown in Girdawari as Maira, but because of the existence of a well near the land makes it capable of becoming Chahi land;

(viii) that while determining the potentials of the land, the use of which the land is capable of being out, ought to be considered and

(ix) that the market value of the land is normally to be taken as existing on the date of publication of the Notification under section 4(1) of Land Acquisition Act, 1894, but for determining the same, the prices on which similar land situated in the vicinity was sold during the preceding 12 months and not 6 - 7 years may be considered including other factors like potential value etc.

Fazalur Rahman and others v. General Manager, S.I.D.B. and another PLD 1986 SC 158; Mrs. Gunj Khatoon and another v. The Province of Sindh through Secretary, Revenue Department, Karachi and another 1987 SCMR 2084; Siddiq and others v. The Deputy Commissioner, East Karachi and another 1988 SCMR 87; Malik Aman and others v. Land Acquisition Collector and others PLD 1988 SC 32 and Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164 rel.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court for Appellants (in C.A. No. 1226 of 2000).

Ghulam Basit, Advocate Supreme Court for Appellants (in C.A. No. 2076 of 2011).

Gul Zarin Kiyani, Senior Advocate Supreme Court with Arshad Ali Ch. Advocate-on-Record for Appellants (in C.A. No. 1222 of 2001).

Ghulam Basit, Advocate Supreme Court with Arshad Ali Ch. Advocate-on-Record for Respondents Nos. 1 to 3 (in C.A. No. 1226 of 2000).

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court with Arshad Ali Ch. Advocate-on-Record for Respondent No. 1 (in C.A. No. 2076 of 2001).

Gul Zarin Kiyani, Senior Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Respondents Nos. 2 to 19 (in C.A. No. 2076 of 2001).

M.S. Khattak, Advocate-on-Record for Respondents Nos.1 to 18 (in C.A. No. 1222 of 2001).

Date of hearing: 2nd March, 2011.

SCMR 2011 SUPREME COURT 1254 #

2011 S C M R 1254

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Sair Ali and Ghulam Rabbani, JJ

AIR LEAGUE OF PIAC EMPLOYEES through President ---Petitioner

Versus

FEDERATION OF PAKISTAN M/O. LABOUR AND MANPOWER DIVISION ISLAMABAD and others---Respondents

Constitutional Petition No. 24 of 2011, decided on 2nd June, 2011.

(a) Industrial Relations Act (IV of 2008)---

----Ss. 25 & 87(3)--- Constitution of Pakistan, Arts. 144(1), 264 & 270-AA [as substituted by Constitution Eighteenth Amendment Act (X of 2010)]---General Clauses Act (X of 1897), Ss. 6 & 24---National Industrial Relations Commission (NIRC), remedy before---Automatic repeal of Industrial Relations Act, 2008 on 30-4-2010 after completion of its statutory period provided in S. 87(3) thereof--- Legislative measure to supersede Industrial Relations Act, 2008 or extend such period till 30-4-2010 not taken by respective Provincial Assemblies till June and July 2010 after passing of Constitution Eighteenth Amendment on 20-4-2010---Availability of protection to Industrial Relations Act, 2008 upto 30-6-2011 under Art. 270-AA of the Constitution---Scope---Industrial Relations Act, 2008 continued to be in force till 30-4-2010 despite abolition of Concurrent Legislative List---Industrial Relations Act, 2008 was a temporary legislation, which stood repealed automatically on 30-4-2010 in terms of S.87(3) thereof---Protection provided under Art.270-AA of the Constitution to all permanent laws enacted by Parliament on subjects mentioned in Concurrent Legislative List did not have any effect on S. 87(3) of the Act, which remained operative till 30-4-2011---Neither S. 6 of General Clauses Act, 1897 nor Art. 264 of the Constitution would apply to Industrial Relations Act, 2008, which was not repealed by any other legislation, rather same was repealed by its own force on expiry of period mentioned in S.87(3) thereof---Industrial Relations Act, 2008 was not an Ordinance, but was an Act of Parliament---No sooner did the Act lapse on 30-4-2010, neither Industrial Relations Ordinance, 2002 nor Industrial Relations Ordinance, 1969 could occupy field on the strength of S. 6 of General Clauses Act, 1897 or Art. 264 of the Constitution---After abolition of Concurrent Legislative List by means of Constitution Eighteenth Amendment, no federal legislation could be made on labour matters except recourse to provisions of Art. 144(1) of the Constitution---Respective Provincial Assemblies had enacted respective laws on subject of labour and trade unions after about two months of expiry of Industrial Relations Act, 2008, during which there was no legislation on the subject---Industrial Relations Laws being procedural in nature would apply retrospectively w.e.f. 1-5-2010---After newly enacted Provincial Laws dealing with industrial disputes, persons having any grievance could approach appropriate new forum provided under respective Provincial Laws---Mere change of forum would not affect rights of a person---During interregnum period w.e.f. 30-4-2010, when no Industrial Relations Law was holding field, workers had remedy under ordinary laws prevailing at such time as in absence of a special law, ordinary/general laws would come forward to fill in the vacuum---Principles.

Commissioner of Income Tax v. Ebrahim D. Ahmed 1992 PTD 1353; Pir Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26; State v. Muhammad Sharif PLD 1960 Lah. 236; The Sargodha Bhera Bus Service Limited v. The Province of West Pakistan PLD 1959 SC 127; Gooderham and Worts v. C.B. Corporation AIR 1949 PC 90; State of Orrissa v. Bhupendra Kumar Bose AIR 1962 SC 945; Qudrat Ullah v. Municipal Board, Barelly AIR 1974 SC 396; Ameer-un-Nissa Begum v. Mahboob Begum AIR 1955 SC 352 and Hansraj Moolji v. The State of Bombay AIR 1957 SC 497 ref.

Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360; Sarfraz v. Muhammad Aslam Khan 2001 SCMR 1062; Gul Hassan and Co. v. Allied Bank of Pakistan 1996 SCMR 237; Adnan Afzal v. Sher Afzal PLD 1969 SC 187 and Mastak v. Lal PLD 1991 SC 344 rel.

(b) Words and phrases---

----"Sunset law"---Definition.

World Book Dictionary and Advanced Law Lexicon: 3rd Edition ref.

----Procedural law has retrospective effect, unless contrary is provided expressly or impliedly.

(d) Administration of justice---

----Mere change of forum would not affect rights of a person.

Adnan Afzal v. Sher Afzal PLD 1969 SC 187 rel.

(e) Interpretation of statutes---

----Repeal of special law---In the absence of special law (repealed), ordinary/general laws would come forward to fill in the vacuum.

Abdul Hafeez Amjad, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioner.

Maulvi Anwar-ul-Haq, Attorney-General on Court Notice.

Mehmood Abdul Ghani, Senior Advocate Supreme Court as Amicus Curiae.

Date of hearing: 10th May, 2011.

SCMR 2011 SUPREME COURT 1279 #

2011 S C M R 1279

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Asif Saeed Khan Khosa, JJ

COLLECTOR OF CUSTOMS (PREVENTIVE), KARACHI---Appellant

Versus

PAKISTAN STATE OIL KARACHI---Respondent

Civil Appeals Nos. 432 to 485 of 2009, decided on 21st April, 2011.

(On appeal from the order dated 10-10-2008 passed by High Court of Sindh at Karachi in Special Customs Reference Applications Nos. 1 to 54 of 2008).

(a) Customs Act (IV of 1969)---

----S. 32---Constitution of Pakistan, Art.185(3)---Leave to appeal was granted by Supreme Court where the petitions raised similar issues whereon court had already granted leave to appeal.

Collector of Customs and another v. Messrs Fatima Enterprises Limited and others 2005 SCMR 1493 and 2007 PTD 1608 ref.

(b) Customs Act (IV of 1969)---

----S. 32---Scope of S.32, Customs Act, 1969---Provisions as envisaged in S.32, Customs Act, 1969 would be attracted on filing deceptive, false and fake declaration, notice, certificate, document or statement; issuance of notice for payment of specified amount in case of short levy of duty, its non-payment, erroneously refunded as a result of some collusion and in case of inadvertence, error or misconstruction, non-levied or short levied of any charge/duty, the payment shall be made subject to notice within the time period specified under S.32(3).

----S. 32(3)---Scope of S.32(3) of Customs Act, 1969---Issuance of show-cause notice---Limitation---Where the case was neither that of forgery nor of fraud, matter would fall within the ambit of S.32(3) of the Customs Act, 1969 for which issuance of notice within prescribed period was a mandatory requirement.

(d) Customs Act (IV of 1969)---

----S. 32(3)---Issuance of notices with inordinate delay even after expiry of period as prescribed in S.32(3) of Customs Act, 1969---Effect---Such an inordinate delay could not be ignored when a specific period had been provided under S.32(3).

(e) Customs Act (IV of 1969)---

----S. 8---Levy of duty---Where huge loss had been caused to Government exchequer mainly due to the negligence of relevant functionaries of the Customs Department, Supreme Court directed that action must be initiated against them by the concerned Collector for dereliction of duty and being inefficient which amounted to misconduct and report in that regard be furnished to the Registrar of the Supreme Court within a period of one month for perusal of the Bench in Chamber.

(f) Customs Act (IV of 1969)---

----Ss. 18 & 194---Constitution of Pakistan, Art.185---Appeal---Customs duty, levy of---Manifested quantity of oil and actually recovered oil---Question of fact to be determined by Customs Excise and Sales Tax Tribunal---Supreme Court declined interference in the matter when conclusion as arrived at in the impugned order of the Tribunal was well based.

Raja Muhammad Iqbal, Advocate Supreme Court for Appellant.

Aziz A. Sheikh, Advocate Supreme Court for Respondent.

Date of hearing: 21st April, 2011.

SCMR 2011 SUPREME COURT 1287 #

2011 S C M R 1287

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali, Khilji Arif Hussain and Mian Saqib Nisar, JJ

MUHAMMAD SHARIF SANDHU---Petitioner

Versus

DISTRICT ACCOUNTS OFFICER and others---Respondents

Civil Petition No. 2431-L of 2009, decided on 6th June, 2011.

(Against judgment dated 21-7-2009 of Punjab Service Tribunal, Lahore, passed in Appeal No. 2579 of 2008).

(a) Contract Act (IX of 1872)---

----S. 73---Damages for breach of contract, calculation of---Criteria---Normally date on which contract had to be performed would be relevant date of breach of contract.

(b) Sales of Goods Act (III of 1930)---

----S. 55---Damages for breach of contract for sales of goods, assessment of---Criteria---Market price on date on which contract was to be performed was criterion, but not that prevailing on any previous or subsequent date.

Petitioner in person.

Shahid Mobeen, Additional P.-G. for Respondents.

Date of hearing: 6th June, 2011.

SCMR 2011 SUPREME COURT 1289 #

2011 S C M R 1289

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

MUHAMMAD HAFEEZ---Petitioner

Versus

WAPDA through Chairman and others---Respondents

Civil Petition No. 1606-L of 2010, decided on 27th May, 2011.

(On appeal against the judgment dated 12-7-2010 passed by the Federal Service Tribunal, Lahore, in Appeal No. 494(L)CS of 2004).

Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 4(1)(b) & 5---Service Tribunals Act (LXX of 1973), S. 4---Compulsory retirement from service---Wilful absence from duty and production of forged medical certificates by appellant about his illness---Dismissal of appeal by Service Tribunal---Validity---Supreme Court declined to interfere in finding of fact on question of wilful absence from duty arrived at by competent authority and concurred by Service Tribunal---Appellant had specifically asserted in memo. of appeal before Service Tribunal that he had tendered five medical certificates about his illness issued by Medical Officers of Government Hospitals and duly countersigned by Medical Superintendent, which were never examined or inquired into---Service Tribunal had not adverted to such ground of appellant---Supreme Court partly accepted appeal to the extent of findings with regard to tendering of bogus medical certificates and directed Authority to release all dues of appellant within specified time.

Mian Jaffer Hussain, Advocate Supreme Court for Petitioner.

Ch. M. Sharif, Advocate Supreme Court, C.M. Latif, Advocate-on-Record and Abdur Rehman, Dy Director WAPDA, Lahore for Respondents.

Date of hearing: 27th May, 2011.

SCMR 2011 SUPREME COURT 1292 #

2011 S C M R 1292

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Syed Sakhi Hussain Bokhari and Syed Zawwar Hussain Jaffery, JJ

NASEER AHMED and another---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 372 of 2008 in Criminal Appeal No. 312 of 2004, decided on 15th December, 2008.

(On appeal from the judgment dated 21-2-2003 passed by Lahore High Court, Lahore in Criminal Appeal No. 1976 of 2001).

Penal Code (XLV of 1860)---

----S. 302(b)/34---Criminal Procedure Code (V of 1898), S. 345---Constitution of Pakistan, Art. 185(3)---Compromise---Accused had deposited Diyat amount in the court in the shape of Defence Saving Certificates in the names of the three minor legal heirs of the deceased---Major legal heirs of the deceased on the basis of the compromise arrived at between the parties had forgiven the accused in the name of Almighty Allah and had already sworn affidavits to that effect and they had no objection to the acquittal of accused---Accused were acquitted in circumstances.

Razzaq A. Mirza, Advocate Supreme Court and M. Zaman Bhatti, Advocate Supreme Court for Appellants.

Mian Asif Mumtaz, Deputy Prosecutor-General for the State.

Date of hearing: 15th December, 2008.

SCMR 2011 SUPREME COURT 1294 #

2011 S C M R 1294

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

TANVEER QAYYUM PIRACHA---Petitioner

Versus

Mian NASEER AHMED---Respondent

Civil Petition No. 708-L of 2011, decided on 27th May, 2011.

(On appeal from the judgment dated 23-2-2011 of the Lahore High Court, Lahore passed in S.A.O. No. 8 of 2009).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Constitution of Pakistan, Art. 185(3)---Contract Act (IX of 1872), S. 56---

Ejectment petition---Respondent claimed not to be in possession of premises having collapsed before filing of ejectment petition---Ejectment order passed by Rent Controller upheld by Additional District Judge and High Court---Validity---Supreme Court granted leave to consider questions as to whether principles of frustration of contract contained in S. 56 of Contract Act, 1872 had been correctly applied to facts of the present case by High Court and Additional District Judge; whether ejectment petition seeking ejectment of respondent from collapsed premises was competent before Rent Controller particularly when he was not in physical possession thereof; and if respondent was not in physical possession of premises at time of filing of ejectment petition and if ejectment petition in such situation was not competent before Rent Controller, then whether dispute between parties was not confined only to recovery of some outstanding dues by petitioner from respondent over which dispute Rent Controller had no jurisdiction and for resolution thereof only civil court could have been approached by petitioner.

Mahmood A. Sheikh, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 27th May, 2011.

SCMR 2011 SUPREME COURT 1296 #

2011 S C M R 1296

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali, Khilji Arif Hussain and Mian Saqib Nisar, JJ

NAVEED AMJAD---Petitioner

Versus

ABDULLAH NAVEED and others---Respondents

Civil Petitions Nos. 463-L to 465-L of 2011, decided on 9th June, 2011.

(Against judgment dated 2-2-2011 of Lahore High Court, Lahore, passed in Writ Petitions Nos. 2203, 2206 and 2207 of 2011).

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Constitution of Pakistan, Arts. 185(3) & 199---Suit for recovery of maintenance of minor children---Granting of maintenance by Family Court vide judgment dated 10-5-2010---Appellate Court in appeal filed by father fixed maintenance at different rate with 10% annual increase therein from date of their desertion in year 2003 by their father---Dismissal of father's constitutional petition by High Court---Father's plea that High Court could not fix maintenance with retrospective effect---Validity---Mother of children did not object to modify impugned judgment to extent that father would pay maintenance at rate fixed in impugned judgment with 10% annual increase with effect from date of judgment of Family Court instead of with annual increase from year 2003---Supreme Court with consent of parties modified the impugned judgment.

Mehmud-ul-Islam, Advocate-on-Record for Petitioner (in all cases).

Mst. Saadia Anwar, Respondents No. 3 in person and for Respondent No. 1 (in C.P. No.465-L of 2011) (in all cases).

Date of hearing: 9th June, 2011.

SCMR 2011 SUPREME COURT 1298 #

2011 S C M R 1298

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

GOVERNMENT OF PAKISTAN through Secretary, Cabinet Division and another---Petitioners

Versus

Dr. M. AKBAR RAJPUT---Respondent

Civil Petition No. 1515-L of 2010, decided on 24th May, 2011.

(On appeal from judgment dated 25-6-2010 of the Federal Service Tribunal, Lahore in M.P. No. 95 of 2008 in Appeal No.192(L)CS of 2000).

(a) Words and phrases---

----"Status quo ante"---Meaning.

The status quo ante means "the situation that existed before something else (being discussed) occurred".

Muhammad Sami Ullah Ghauri, Research Officer, Islamabad v. Secretary, Establishment Division, Government of Pakistan, Islamabad 2002 SCMR 698 rel.

(b) Judgment---

----Judgment of a court not challenged before higher forum---Effect---Such judgment for not being challenged before higher forum would attain finality---Any contrary interpretation of a departmental correspondence could not offset judicial pronouncement.

Muhammad Sami Ullah Ghauri, Research Officer, Islamabad v. Secretary, Establishment Division, Government of Pakistan, Islamabad 2002 SCMR 698; Muhammad Wasay Tareen v. Chief Justice of Balochistan, through Registrar of High Court of Balochistan, Quetta 2005 SCMR 464 and Miss Rahat Afroze v. State Life Insurance Corporation 2007 PLC (CS) 207 ref.

Barrister Imran Aziz Khan, Advocate Supreme Court and Imtiaz A. Shaukat, Advocate-on-Record for Petitioners.

Asif Nazir Awan, Advocate Supreme Court for Respondent.

Date of hearing: 24th May, 2011.

SCMR 2011 SUPREME COURT 1302 #

2011 S C M R 1302

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Khilji Arif Hussain, JJ

ASJAD HUSSAIN---Petitioner

Versus

CHIEF ENGINEER (ADMINISTRATION) POWER, WAPDA and others---Respondents

Civil Petition No. 612-L of 2010, decided on 8th June, 2011.

(Against judgment dated 4-2-2010 of Federal Service Tribunal, Lahore, passed in Appeal No. 601(L)SC of 2006).

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3, 5 & 10---Constitution of Pakistan, Art. 212(3)---Removal from service---Absence from duty without leave for four (4) years after expiry of sanctioned ex-Pakistan study leave of 730 days---Dismissal of appeal by Service Tribunal---Validity---Appellant could not credibly explain reasons for his absence abroad and non-joining service after expiry of ex-Pakistan study leave---Supreme Court dismissed petition for leave to appeal, in circumstances.

Ch. M. Khalid Farooq Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 8th June, 2011.

SCMR 2011 SUPREME COURT 1304 #

2011 S C M R 1304

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

Dr. TAHIRA HUSSAIN and others---Appellants

Versus

Shaikh WASEEM AHMED---Respondent

Civil Appeal No. 2281 of 2001, decided on 3rd November, 2008.

(On appeal against the orders dated 15-1-2001 passed by High Court of Sindh at Karachi, in R.F.A. No. 548 of 1999).

Sindh Rented Premises Ordinance (XVII of 1979)---

----Ss. 21 & 22---Constitution of Pakistan, Art.185---Appeal to Supreme Court---Counsel for appellants, after arguing the matter, had submitted that he would not press appeal, provided the Rent Controller be directed to decide appellants' pending applications; one filed under S.12(2), C.P.C.; and other under S.22 of Sindh Rented Premises Ordinance, 1979---Counsel for the respondent having accepted said offer and raised no objection to that course of action, Rent Controller was directed to decide appellants' pending applications, filed under S.12(2), C.P.C. and S.22 of Sindh Rented Premises Ordinance, 1979, within a period of two months, accordingly.

Abdul Qadir Khan, Advocate Supreme Court and A.Aziz Khan, Advocate-on-Record for Appellants.

Zafar Alam, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent.

Date of hearing: 3rd November, 2008.

SCMR 2011 SUPREME COURT 1306 #

2011 S C M R 1306

[Supreme Court of Pakistan]

Present: Muhammad Moosa Khan Leghari and Syed Zawwar Hussain Jaffery, JJ

MUHAMMAD SHOAIB NAJI and others---Petitioners

Versus

MUHAMMAD YASIN and others---Respondents

Civil Petition No. 544-K of 2007, decided on 6th February, 2009.

(On appeal from the order dated 11-6-2007 passed by High Court of Sindh Karachi in C.P. No. 460 of 2002).

Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15---Constitution of Pakistan, Arts. 185(3) & 199---Bona fide personal need of shop by landlord---Acceptance of ejectment petition by Rent Controller and Appellate Court---Plea of tenant in constitutional petition before High Court was that during pendency of ejectment proceedings, landlord, after vacating two shops from previous tenants, had rented out to new tenants---Remand of case by High Court to Rent Controller for its decision after recording further evidence on the ground that if such plea of tenant was correct, then landlord had to show as to why his demand to establish business could not have been met with satisfactorily---Validity---Impugned order was just, proper and legally valid meant to advance cause of justice---Supreme Court dismissed petition for leave to appeal in circumstances.

Mian Mushtaq Ahmed, Advocate Supreme Court for Petitioners.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court and Abdul Qadir Khan, Advocate Supreme Court for Respondents.

Date of hearing: 6th February, 2009.

SCMR 2011 SUPREME COURT 1309 #

2011 S C M R 1309

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

ABDUL GHAFOOR SHEIKH---Petitioner

Versus

DEPUTY COLLECTOR OF CUSTOMS and others---Respondents

Civil Petition No. 1794-L of 2010, decided on 27th May, 2011.

(On appeal against the judgment dated 11-8-2010 passed by the Federal Service Tribunal, Lahore in Appeal No. 634(L)CS of 2004).

Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 2(4), 4(b), 5 & 6---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan, Art. 212(3)---Dismissal from service---Misconduct, inefficiency and negligence of duty---Imposition of penalty upon appellant after he was found guilty of such charges by Inquiry Officer---Dismissal of appeal by Service Tribunal---Validity---Inquiry Officer was not inimical towards appellant---Inquiry Officer had given full opportunity to appellant to cross-examine witnesses and lead evidence in defence---Inquiry Officer had found material against appellant establishing his guilt---Supreme Court dismissed petition for leave to appeal in circumstances.

Ch. Muhammad Rafique Warriach, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 27th May, 2011.

SCMR 2011 SUPREME COURT 1311 #

2011 S C M R 1311

[Supreme Court of Pakistan]

Present: Muhammad Moosa Khan Leghari, Syed Sakhi Hussain Bukhari and Sheikh Hakim Ali, JJ

Miss ASMA GHAFOOR---Appellant

Versus

PRINCIPAL, KING EDWARD MEDICAL COLLEGE, LAHORE and 3 others---Respondents

Civil Appeal No. 591 of 2006, decided on 21st January, 2009.

(On appeal from order dated 24-3-2005 of the Lahore High Court, Lahore passed in W.P. No. 6556 of 2004).

Constitution of Pakistan---

----Art. 199---Constitutional petition---Failure of petitioner to qualify first professional MBBS examination within prescribed four chances---Refusal of College to give further chance to petitioner to appear in such examination---Validity---Petitioner was admitted to first year about eight years ago, but could not qualify such examination within four chances---Petitioner appeared not to be interested to continue her studies in Medical College---Factual controversy between parties could not be resolved without elaborate inquiry---Impugned action was in accordance with rules and regulations of the College--- Constitutional petition was rightly dismissed in circumstances.

Ali Mir's case 1984 SCMR 433; Nadir Khan and others v. Principal, Khyber Medical College, Peshawar and others 1995 SCMR 421; Akhtar Ali Javed v. Principal Quaid-i-Azam Medical College, Bahawalpur 1994 SCMR 532 and Muhammad Hamid Shah v. Pakistan Medical and Dental Council through Secretary and 4 others 1996 SCMR 1101 rel.

Abdul Sadiq Chaudhry, Advocate Supreme Court for Appellant.

Mudassar Khalid Ameen, A.A.-G. Punjab for Respondents.

Date of hearing: 21st January, 2009.

SCMR 2011 SUPREME COURT 1315 #

2011 S C M R 1315

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bukhari, JJ

Mst. KOKAB BENAZIR FATIMA---Petitioner

Versus

MUHAMMAD ASHRAF and others---Respondents

Civil Petition No. 442-K of 2009, decided on 10th June, 2009.

(Against judgment dated 13-3-2009 of the High Court of Sindh, Karachi passed in HCA No. 197 of 2008).

Constitution of Pakistan---

----Art. 185(2)(d) & 185(3)---Appeal to Supreme Court---Scope---Leave to appeal---Maintainability---Respondent objected to petition for leave to appeal on the ground that in the matter, direct appeal under Art.185(2)(d) of the Constitution was to be filed before Supreme Court instead of petition for leave to appeal under Art.185(3) of the Constitution---Respondent also contended that appeal before Supreme Court under Art. 185(2)(d) of the Constitution was barred by limitation---Validity---For determination of filing of appeal or petition, amount or value of subject matter of dispute in court of first instance should not be less than Rs.50,000 and on this account judgment, decree and order appealed against was varied or set aside by court immediately below---Value of subject matter in dispute in the court of first instance had to be looked into and not the value of original suit---Value of subject matter of suit was more than Rs. 50,000 and order passed by High Court for rejection of plaint was varied by Division Bench of High Court---As the subject matter of dispute i.e. agreement to sell and quantum of damages claimed in plaint in the court of first instance exceeded Rs.50,000, judgment of High Court was set aside, therefore, petition for leave to appeal, in view of Art. 185(2)(d) of the Constitution was barred---Only direct appeal under Art. 185(2)(d) of the Constitution was competent---Supreme Court in appropriate cases and in exercise of discretion had ample powers to condone delay caused in filing appeal provided sufficient and reasonable cause within the parameters of law had been shown for condonation of delay---Petitioner did not file any application either for conversion of petition for leave to appeal into appeal or application for condonation of delay, therefore, there was no sufficient cause before Supreme Court for conversion of petition into appeal and to condone delay---Petition was dismissed.

Ghulam Muhammad v. Government of Balochistan 2007 SCMR 41; Muhammad Nawaz v. Sardara 2008 SCMR 1953 and Lahore Cantt, Park View Cooperative Housing Society v. Muhammad Ishaq and others 2000 SCMR 39 rel.

S.M. Gharib Nawaz Daccawala, Advocate Supreme Court for Petitioner.

Abdul Qadir Khan, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Respondents.

Date of hearing: 10th June, 2009.

SCMR 2011 SUPREME COURT 1319 #

2011 S C M R 1319

[Supreme Court of Pakistan]

Present: Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

NOORUDDIN and others---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No. 87-K of 2008, decided on 4th December, 2008.

(On appeal against the order dated 16-10-2008 passed by High Court of Sindh, Circuit Bench, Larkana in Criminal Bail Application No.541 of 2008).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.467, 468, 471, 472 & 473---Constitution of Pakistan, Art.185(3)---Bail, grant of---Petitioners who were taken into custody, their applications for bail were dismissed by the Trial Court and High Court---Validity---Section 467, P.P.C. not being involved, allegations against the petitioners, could at best indicate an offence under S.471, P.P.C. read with S.466, P.P.C. being not punishable with imprisonment for ten years or above---High Court completely overlooked the elementary principle that bail was not to be withheld as punishment and its grant in such offences, was the rule and not an exception---Fact that the complainant happened to be 'Tapedar' and being able of using his influence with Revenue Authorities, required the court to act with great caution---Prosecutor General fairly conceded that he was unable to support the impugned order---Petition was converted into appeal and was allowed directing that each of the petitioners be released on bail.

Muhammad Ashraf Laghari, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioners.

Shahadat Awan, P.-G. Sindh for the State.

Complainant in person.

Date of hearing: 4th December, 2008.

SCMR 2011 SUPREME COURT 1321 #

2011 S C M R 1321

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Mian Saqib Nisar, JJ

EDO EDUCATION, KHANEWAL and others---Petitioners

Versus

MUHAMMAD AFZAL and 4 others---Respondents

Civil Petition Nos. 16 to 20-L of 2011, decided on 26th May, 2011.

(Against the judgment dated 4-10-2010 passed by Punjab Service Tribunal, Lahore in Appeals Nos. 1545, 1546, 1547, 1548 and 1549 of 2010).

Civil service---

Zaka-ur-Rehman----Advance increment for acquiring higher qualification---Elementary English Teacher's such claim was based on Notifications dated 25-8-1983 and dated 7-7-2007 issued by Punjab Government---Plea of Authority was that such claim was not allowable in view of Notification dated 26-6-1990 admitting higher pay scale to such teacher---Validity---Such teacher had acquired higher qualification during course of her employment---If notification dated 26-6-1990 had not been enforced, then such teacher would have been entitled to increment in terms of notifications dated 25-8-1983 and 7-7-2007---Authority had not raised such plea before Service Tribunal---Clause 2 of Notification dated 26-6-1990 did not bar claim of such teacher---Such claim accepted by Tribunal was upheld by Supreme Court, in circumstances.

, Additional A.-G. and M. Akram Shahid, DEO (SE) Khanewal for Petitioners (in all cases).

Respondents in person (in C.P. 17-L of 2011).

Date of hearing: 26th May, 2011.

SCMR 2011 SUPREME COURT 1322 #

2011 S C M R 1322

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bukhari, JJ

MANZOOR AHMED and others---Petitioners

Versus

AURANGZEB---Respondent

Civil Petition No. 3394-L of 2004, decided on 30th June, 2009.

(Against judgment dated 15-10-2004 of the Lahore High Court, Lahore passed in Civil Revision No. 2037 of 2002).

Punjab Pre-emption Act (IX of 1991)---

----S.13---Right of pre-emption---Talb-e-Muwathibat, making of---Plaint and evidence---Contradictions---Effect---Suit filed by pre-emptor was concurrently decreed in his favour by all three courts below---Plea raised by vendees was that there was contradiction in plaint and evidence regarding time and place of making of Talb-e-Muwathibat---Validity---Stance of pre-emptor was contradictory, inasmuch as, in plaint it was alleged that he performed Talb-e-Muwathibat on 28-8-1995, in presence of a witness but while appearing as witness, pre-emptor stated that Talb-e-Muwathibat was performed on 5-9-1995, in presence of Patwari---Such two statements were irreconcilable as two different dates for performance of Talbs were pleaded by pre-emptor---Issue relating to Talbs could not have been decided in favour of pre-emptor in view of his contradictory stance---None of the courts below adverted to such material and crucial aspect of the case which could have only decided fate of suit---High Court only relied upon statement of pre-emptor and completely ignored his stance initially taken in the plaint---All the courts below decided the matter in complete oblivion of record of case and High Court mechanically affirmed findings of two courts on the ground that those were concurrent---All the courts completely misread the record of the case and Supreme Court reversed judgments and decrees of all three courts---Supreme Court converted petition for leave to appeal into appeal and dismissed the suit filed by pre-emptor---Appeal was allowed.

Saif-ul-Haq Ziay, Advocate Supreme Court for Petitioners.

Ch. M. Yaqoob Sandhu, Advocate Supreme Court for Respondent.

Date of hearing: 30th June, 2009.

SCMR 2011 SUPREME COURT 1325 #

2011 S C M R 1325

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Khilji Arif Hussain, JJ

Mst. NUSRAT and others---Petitioners

Versus

Dr. Cap. SHAHZAD RIAZ and others---Respondents

Civil Petition No. 737-L of 2011, decided on 7th June, 2011.

(Against order dated 24-2-2011 of Lahore High Court, Lahore, passed in Writ Petition No. 9889 of 2010).

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Suit for recovery of maintenance of minor children---Awarding of maintenance with 10% annual increase by Family Court to children of first divorced wife with reference to income of father and his responsibility towards his children from second marriage---Such findings of Family Court upheld by Appellate Court and High Court---Supreme Court declined to interfere in such concurrent findings of fact in circumstances.

Mushtaq Ahmed Mohal, Advocate Supreme Court and Mahmud-ul-Islam, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 7th June, 2011.

SCMR 2011 SUPREME COURT 1327 #

2011 S C M R 1327

[Supreme Court of Pakistan]

Present: Mehmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

MUHAMMAD AFZAL---Petitioner

Versus

REGIONAL POLICE OFFICER, BAHAWALPUR and others---Respondents

Civil Petition No. 1196-L of 2010, decided on 3rd June, 2011.

(Against the judgment dated 19-2-2010 passed by Punjab Service Tribunal, Lahore in Appeal No. 1463 of 2009).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr. 4(1)(b), 5 & 6---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan, Art. 212(3)---Compulsory retirement from service---Misconduct, charge of---Imposition of such penalty on basis of material collected from fact finding departmental inquiry and dispensing with regular inquiry against appellant---Dismissal of appeal by Service Tribunal---Validity---Department had not conducted any regular inquiry in the matter---Appellant had appeared in fact finding inquiry, but he had not been given opportunity to cross-examine witnesses---Such lapse had resulted into miscarriage of justice and caused prejudice to appellant---Supreme Court set aside impugned judgment and directed Authority to hold a de novo regular inquiry against appellant to be completed within specified time.

Shabbir Ahmad Bhutta, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record for Petitioner.

Zaka-ur-Rehman, Additional A.-G. for Respondents.

Date of hearing: 3rd June, 2011.

SCMR 2011 SUPREME COURT 1329 #

2011 S C M R 1329

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

BASHIR AHMAD---Petitioner

Versus

INCHARGE (FEMALE) DARULAMAN, DISTRICT MIANWALI and others---Respondents

Civil Petition No. 773-L of 2009, decided on 26th May, 2011.

(On appeal from the order dated 17-4-2009 of the Lahore High Court, Lahore passed in Writ Petition No. 7129 of 2009).

Guardians and Wards Act (VIII of 1890)---

----S. 7---Constitution of Pakistan, Arts. 185(3) & 199---Appointment of guardian of minor girl aged 12/13 years---Contest between a beggar and blind mother of minor and an issueless person (a retired Army personnel) in whose care mother had given minor---Order of Guardian Judge accepting mother's application modified by Additional District Judge in appeal directing minor to be kept in Darulaman till attaining age of majority---High Court, in constitutional petition filed by such person upheld order of Guardian Court---Validity---Such person and his three brothers were issueless---Mother herself had given minor in care of such person, who was looking after minor as his own daughter---Mother being blind and a beggar not having fixed abode and definite source of income could not bring up minor properly---Living of minor with her mother would not in such circumstances be in welfare of minor---Minor present in Supreme Court appeared to be a confident and well-groomed child---Minor stated in court that she was studying in VI Class and had passed her examinations with distinction---Minor further stated in court that such person was bringing her up as his own child and she was quite happy in living with him---Minor needed proper upbringing and education, which opportunity would not be available to her while living in Darulaman---Such person had acted like a de fecto guardian of minor and he could be expected to continue behaving as such in future---Minor's continued living in Darulaman as directed by Additional District Judge and upheld by High Court would not be conducive to her welfare---Supreme Court set aside impugned orders, accepted application of such person while directing him to produce minor in Family Court concerned on first working day of every month and such court would satisfy itself about maintenance and upbringing of minor, and in case of any doubt Family Court would submit its report to Registrar for an appropriate action by Supreme Court---Supreme Court further directed such person to allow mother as per her desire to meet minor.

Muhammad Tahir Chaudhry, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record along with Petitioner and Maqadas Bibi for Petitioner.

M. Hanif Khatana, Additional Advocate-General, Punjab with Khalil-ur-Rehman, Legal Advisor, Darulaman for Respondents.

Date of hearing: 26th May, 2011.

SCMR 2011 SUPREME COURT 1332 #

2011 S C M R 1332

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Zawwar Hussain Jaffery, JJ

REHMATULLAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No. 215-L of 2009, decided on 17th April, 2009.

(Against the order dated 19-3-2009 passed by Lahore High Court, Lahore in Criminal Miscellaneous No. 11744-BC of 2008).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302/34---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Bail, confirmation of---Bail granted to petitioner was cancelled by the High Court, when according to the order itself, the trial was at the verge of conclusion---Only one or two witnesses were yet to be recorded---Courts should not grant or cancel bail when the trial was in progress; and proper course for the courts in such a situation, could be to direct the Trial Court to conclude the trial of the case within a specified period---Impugned order having been passed in violation of the law, Supreme Court could not subscribe to the same---Petition for leave to appeal was converted into appeal and was allowed and bail granting order passed by the Supreme Court was confirmed, with direction to conclude the trial of the case within specified period.

Muhammad Hanif v. Shafqat Nazir and others 2007 SCMR 1857 and Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68 rel.

Muhammad Hanif v. Shafqat Nazir and others 2007 SCMR 1857 ref.

Malik Muhammad Imtiaz Mahal, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Petitioner.

Alamgir, A.P.-G. for the State.

Mian M. Sikandar Hayat, Advocate Supreme Court for the Complainant.

Date of hearing: 17th April, 2009.

SCMR 2011 SUPREME COURT 1334 #

2011 S C M R 1334

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

MUHAMMAD ADIL LATIF and another---Petitioners

Versus

GOVERNMENT OF PUNJAB, IRRIGATION AND POWER DEPARTMENT through Secretary and another---Respondents

Civil Petitions Nos. 1771 and 1772-L of 2010, decided on 26th May, 2011.

(On appeal from judgment dated 21-7-2010 of the Punjab Service Tribunal, Lahore, passed in Appeals No. 1944 and 1945 of 2006).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Constitution of Pakistan, Art. 212(3)---Departmental promotion examination for Sub-Engineers held by Irrigation and Power Department---Notification issued by Department changing criteria and prescribed mode of papers/questions after having held such examination---Plea of employee-candidate that chances of his promotion would be adversely affected by new criteria---Dismissal of employee's appeal by Service Tribunal---Validity---Such new criteria laid down by Department was not violative of PWD Code---Impugned notification did not affect prescribed syllabus of examination---PWD Code did not prevent competent authority from changing criteria of examination within outlines of prescribed syllabus at any time--Substituted criteria was not alleged to be against prescribed syllabus---Supreme Court dismissed petition for leave to appeal in circumstances.

Muhammad Ahmed Qazi, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 26th May, 2011.

SCMR 2011 SUPREME COURT 1335 #

2011 S C M R 1335

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Ch. Ejaz Yousaf and Sardar Muhammad Aslam, JJ

QAMAR ABBAS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 353 of 2006, decided on 15th May, 2009.

(On appeal from the judgment dated 17-2-2006 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur, in Criminal Appeal No. 285 and Murder Reference No. 81 of 2002).

Penal Code (XLV of 1860)---

----S. 302(b)---Appraisal of evidence---Presence of eye-witnesses in the house of the deceased at the time of occurrence could not be doubted---Ocular evidence was reliable, trustworthy and cogent---Medical evidence and recovery of crime weapon, stained with human blood, from the accused had corroborated the ocular testimony---Defence plea was absurd and coined to scandalize the family---F.I.R. contained the name of accused, eye-witnesses and the motive---Venue of occurrence was admitted---Motive was proved on record---Accused had committed premeditated and unjustified murder---No extenuating circumstance was available in favour of accused for award of lesser punishment and he having committed a gruesome and brutal murder could not escape capital punishment---Appeal was dismissed in circumstances.

Ata Muhammad and another v. The State 1995 SCMR 599; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 and Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879 distinguished.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

M. Siddique Khan Baloch, D.P.-G., Punjab for the State.

Date of hearing: 15th May, 2009.

SCMR 2011 SUPREME COURT 1341 #

2011 S C M R 1341

[Supreme Court of Pakistan]

Present: Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

AMANULLAH SOOMRO---Petitioner

Versus

P.I.A. through Managing Director/Chairman and another---Respondents

Civil Petition No. 470-K of 2008, decided on 19th February, 2009.

(On appeal against the order dated 30-10-2008 passed by High Court of Sindh, Karachi in C.P. No. D-2105 of 2006).

(a) Limitation Act (IX of 1908)---

----S.5---Condonation of delay---Principle---Line has to be drawn between negligence and bona fide mistake.

(b) Constitution of Pakistan---

----Art. 185 (3)---Limitation Act (IX of 1908), S. 5---Petition for leave to appeal---Condonation of delay---Negligence of counsel---Plea raised by petitioner was that litigants should not be penalized for negligence of counsel---Validity---Plea raised by petitioner might be attractive on moral plain but there was no justification for depriving opposite party of legal rights acquired owing to negligence of petitioner or counsel retained by him---Right to recover amount of wrongful loss caused on account of negligence was available to petitioner, who himself made application to statutory body regulating conduct of advocates---Undue indulgence granted by courts would only multiply such problems---Supreme Court noted with concern that collective bodies of Bar need to seriously attend such matters to restore public confidence in the noble profession---No serious question of law was involved nor findings of High Court had been shown to be perverse so as to call for interference of Supreme Court under Art. 185(3) of the Constitution---Leave to appeal was refused.

Zulfiqar Ali v. Lal Din and another 1974 SCMR 162 and Mst. Begum and others v. Mst. Begum Kaniz Fatima Hayat and others 1989 SCMR 883 ref.

Rasool Bux Palejo, Advocate Supreme Court for Petitioner.

Khalid Javed, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Respondent No. 1.

Date of hearing: 19th February, 2009.

SCMR 2011 SUPREME COURT 1344 #

2011 S C M R 1344

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali, Khilji Arif Hussain and Mian Saqib Nisar, JJ

Mrs. REHMAT JEHAN---Appellant

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and others---Respondents

C.A. No. 1881 of 2005, decided on 6th June, 2011.

(On appeal against the judgment dated 21-2-2004 passed by Punjab Service Tribunal, Lahore in Appeal No. 2757 of 2003).

(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R. 2(d)---Misconduct---Appointments made on fake and forged documents by senior officer of department---Validity---Such acts for being prejudicial to good order and discipline and unbecoming of an officer would amount to misconduct.

(b) Constitution of Pakistan---

---Art. 212(3)---Appeal against judgment of Service Tribunal---Reappraisal of evidence by Supreme Court---Scope---When evidence available on record was duly examined in detail by Inquiry Officer as well as Service Tribunal, Supreme Court could not go into a third exercise of its re-evaluation in absence of its gross non-consideration---Supreme Court dismissed appeal in circumstances.

Noor M. Khan Chandia, Advocate Supreme Court and Mahmudul-Islam, Advocate-on-Record for Appellant.

Azeem Malik, Additional A.-G. for Respondents.

Date of hearing: 6th June, 2011.

SCMR 2011 SUPREME COURT 1347 #

2011 SCMR 1347

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bukhari, JJ

MUHAMMAD ILYAS---Petitioner

Versus

ALLIED BANK LIMITED---Respondent

Civil Petition No. 142-L of 2009, decided on 28th May, 2009.

(Against order dated 15-12-2008 of the Lahore High Court, Multan Bench, Multan passed in FAO No. 102/L of 2008).

Constitution of Pakistan---

----Art. 185(2)(d), (3)--Petition for leave to appeal---Competence---Under provisions of Art.185(2)(d) of Constitution, for determining the question as to whether appeal or petition would be competent, amount or value of subject matter of the dispute in the court of first instance should not be less than Rs.50,000; and that the judgment, decree and order appealed from was varied or set aside by the court immediately below---In the present case, the judgment rendered by the original court was varied and set aside by the High Court; and the petitioner claimed pensionary benefits amounting to Rs.8,38,000, which was the subject matter in dispute in the court of first instance---Petition, in view of Art.185(2)(d) of Constitution, was barred and only the appeal was competent.

Ch. Riyasat Ali, Advocate Supreme Court for Petitioner.

Shahid Anwar Bajwa, Advocate Supreme Court for Respondent.

Date of hearing: 28th May, 2009.

SCMR 2011 SUPREME COURT 1349 #

2011 SCMR 1349

[Supreme Court of Pakistan]

Present: Tariq Parvez, Mian Saqib Nisar, Asif Saeed Khan Khosa, Dr. Fida Muhammad Khan and Dr. Muhammad Al-Ghazali, JJ

SALEEM and another---Petitioners

Versus

THE STATE---Respondent

Jail Shariat Petition No. 9 of 2009, decided on 9th May, 2011.

(On appeal from the judgment dated 12-2-2009 passed by the Federal Shariat Court in Jail Criminal Appeal No. 74/K of 2006).

Qanun-e-Shahadat (10 of 1984)---

----Arts. 22 & 74---Constitution of Pakistan, Art. 203-F(2B)-Identification of accused---Proof---Death of Investigating Officer---Secondary evidence---Plea raised by accused was that Magistrate under whose supervision Test Identification Parade was held was not produced and even during trial accused persons were not identified--Accused raised the further plea that person who conducted entire investigation was reportedly dead and documents prepared by him were not proved through secondary evidence---Effect---Leave to appeal was granted for reappraisal of entire evidence.

M. Zaman Bhatti, Advocate Supreme Court for Petitioners.

Saleem Akhtar, Additional P.-G., Sindh for the State.

Date of hearing: 9th May, 2011.

SCMR 2011 SUPREME COURT 1350 #

2011 SCMR 1350

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

Malik MUHAMMAD ISHAQ---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 380-L of 2011, decided on 11th July, 2011.

(On appeal from the order dated 11-5-2011 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 2342-B of 2011).

Penal Code (XLV of 1860)---

----Ss. 302/324/353/120/120-A/186/427/395/148/149/109---Anti-Terrorism Act (XXVII of 1997), S.7---Explosive Substances Act (VI of 1908), Ss. 3/4---West Pakistan Arms Ordinance (XX of 1965), S.13-B---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, attempt to qatl-e-amd, assault on public servant, criminal conspiracy, obstructing public servant, mischief, dacoity, rioting and abetment---Bail, grant of---Case of further inquiry---Challan, filing of---Incriminating evidence---At the time of occurrence, the accused was lodged at high security prison and he had spent last about 13 years in such prison, without even coming out of the same---Allegation against accused was that he had conspired with co-accused from inside the prison for the purposes of commission of the offences alleged in F.I.R.---Plea raised by authorities was that accused was a known terrorist who had been involved in many heinous offences---Validity---Authorities failed to point out any legally admissible piece of evidence supporting the allegation against accused---Investigation of the case had been completed and challan was submitted, thus physical custody of accused was no longer required for the purposes of investigation---Supreme Court observed that court could not brutalize justice in the name of terrorism, as no legally admissible evidence against accused was available on record and shown by authorities to the court---Bail was allowed.

Qazi Misbah-ul-Hassan, Advocate Supreme Court for Petitioner.

Asjad Javaid Ghural, Additional Prosecutor-General, Punjab with Nabi Bukhsh, Inspector ATS/CIA for the State.

Nemo for Respondent No. 2.

Date of hearing: 11th July, 2011.

SCMR 2011 SUPREME COURT 1352 #

2011 SCMR 1352

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed, Muhammad Qaim Jan Khan and Syed Zawwar Hussain Jaffery, JJ

THE STATE through Director-General, ANF---Petitioner

Versus

MUJEEB KHAN---Respondent

Criminal Petition No. 86 of 2009, decided on 25th June, 2009.

(Against the judgment dated 11-2-2009 passed by Peshawar High Court Peshawar in Criminal Miscellaneous No. 1043 of 2008).

Criminal Procedure Code (V of 1898)---

----S.497(5)---Control of Narcotic Substances Act (XXV of 1997), S.9---Constitution of Pakistan, Art. 185(3)--- Narcotic case--- Bail, cancellation of---High Court had granted bail to accused mainly on medical grounds coupled with his being in jail for the last two years---Prosecution was not shown to be responsible for the delay in conclusion of the trial by High Court---Accused had failed to appear before Trial Court and Supreme Court despite notice and non-bailable warrants issued against him and he was stated to have shifted to an unknown place--Matter could not be kept pending for an indefinite period---Petition was converted into appeal and bail allowed to accused was recalled in circumstances.

Raja Niaz Ahmed Rathore, Advocate Supreme Court and Ch. M. Akram, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 25th June, 2009.

SCMR 2011 SUPREME COURT 1354 #

2011 SCMR 1354

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Sair Ali and Anwar Zaheer Jamali, JJ

HAYATULLAH KHAN and another---Petitioners

Versus

MUHAMMAD KHAN and others--Respondents

Civil Petition No. 321-P of 2010, decided on 10th August, 2010.

(On appeal from the judgment dated 20-5-2010 passed by the Peshawar High Court, D.I. Khan Bench in W.P. No. 229 of 2009).

(a) Criminal Procedure Code (V of 1898)---

----Ss. 169, 170 & 173---Discharge of accused by Trial Court on basis of report of Investigating Officer submitted under S. 169, Cr. P. C. ---Validity--Question of determination of guilt or innocence of accused squarely fell within jurisdiction of Trial Court---Where sufficient incriminating material connecting accused prima facie with commission of alleged offence had come on record, then Trial Court had no power to endorse opinion/view of Investigating Officer---Principles.

(b) Criminal Procedure Code (V of 1898)---

----Ss. 169, 170 & 173---Opinion of Investigating Officer regarding medical evidence and firearm expert's report--Validity---Investigating Officer could not be considered such a skillful person to give his opinion on medical evidence---Questions as to whether medical evidence corroborated ocular version or not and what was evidentiary value of expert's report could be decided only by Trial Court having substantial bearing on merits of case.

----Alibi, plea of-Proof-Such plea being a distinct plea would require to be substantiated by accused by adducing cogent and concrete evidence.

(d) Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 169, 170 & 173---Constitution of Pakistan, Arts. 185(3) & 199---Constitutional petition before High Court---Police investigation in criminal offence, interference with---Order of High Court directing entrustment of case to an impartial Investigating Officer for conducting fair investigation---Plea of accused was that High Court could pass impugned order under S. 561-A, Cr. P. C. but not under Art.199 of the Constitution---Validity---High Court had no powers under S. 561-A, Cr. P. C. to interfere with police investigations in criminal offences---Supreme Court repelled such plea and upheld impugned order.

Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317; Shashadhar Acharya v. Sir Charles Tegart AIR 1932 Cal. 229; Muhammad Hussain v. Inspector-General of Police PLD 1967 Lah. 1123; Shamsuddin v. Captain Gauhar Ayyub PLD 1965 SC 496; Crown v. Muhammad Sadiq Niaz PLD 1949 Lah. 562; Emperor v. Kh. Nazir Ahmad AIR 1945 PC 18; State of West Bengal v. S.N. Basak AIR 1963 SC 447; Sher Khan and others v. The State 1968 SCMR 62; Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317; M.S. Khawaja v. The State PLD 1965 SC 287; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Baluchistan PLD 1971 SC 677; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Ahmed Siyal v. National Accountability Bureau 2004 SCMR 265; Habib v. State 1983 SCMR 370; Zahoor Ahmed Sheikh v. Chairman, National Accountability Bureau PLD 2007 Kar. 243; Norwest Hoist Ltd. v. Department of Trade and others (1978) 3 All ER 280; Wiseman v. Borneman (1971) AC 297 and Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan 1994 SCMR 2142 re l.

Muhammad Arif Khan, Senior Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 10th August, 2010.

SCMR 2011 SUPREME COURT 1360 #

2011 SCMR 1360

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Khilji Arif Hussain, JJ

GULZAR HUSSAIN, A.S.-I.-Petitioner

Versus

DISTRICT POLICE OFFICER and others---Respondents

Civil Petition No. 816-L of 2010, decided on 8th June, 2011.

(Against judgment dated 31-3-2010 of Punjab Service Tribunal, Lahore, passed in Appeal No. 2781 of 2009).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999----

----R. 4--- Punjab Service Tribunals Act (IX of 1973), S. 4---Constitution of Pakistan, Art. 212(3)---Dismissal from service--Imposition of converted penalty of forfeiture of two years approved service of appellant by Service Tribunal---Validity---Supreme Court granted leave to appeal to consider as to whether on disproof of all charges as per impugned judgment, Service Tribunal could impose such converted penalty; that on reinstatement of appellant in service, could the period during which he remained out of service be treated as leave without pay; and whether forfeiture of two years approved service was a legitimate punishment particularly in absence of proof of all charges.

Malik Saeed Hassan, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 8th June, 2011.

SCMR 2011 SUPREME COURT 1361 #

2011 SCMR 1361

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez and Amir Hani Muslim, JJ

FARZANA RASOOL and 3 others---Appellants

Versus

Dr. MUHAMMAD BASHIR and others---Respondents

Civil Appeal No. 124 of 2011, decided on 16th June, 2011. .

(On appeal from the judgment/order dated 14-2-2011 passed by Lahore High Court, Multan Bench, Multan in W.P. 12336 of 2010).

(a) West Pakistan Family Courts Act (XXXV of 1964)---

---S. 5 & Sched.---Constitution of Pakistan, Arts. 185(3) & 199---Suit for recovery of maintenance allowance and dowry articles---Appointment of Arbitrators at defendant's request for settlement of his family disputes with wife by giving undertaking to be bound by their decision---Suit decreed by Family Court on basis of recommendations of Arbitrators upheld by Appellate Court, but set aside by High Court on the ground that Arbitration Act, 1940 was not applicable to Family Courts---Validity---Supreme Court granted leave to appeal to consider plaintiff's contention that Family Courts were not precluded to refer matters between parties for mediation, arbitration or decision by a third party, thus, High Court might have not interfered in proceedings where parties themselves consented for same.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----Preamble, Ss. 5, Sched. 10 & 12---Provisions of Ss. 10 & 12 of West Pakistan" Family Courts Act, 1964 requiring Family Court to make efforts to effect conciliation/compromise between spouses at pre-trial and post-trial stages---Validity---Such provisions being in consonance with command of Allah Almighty described in Ayat No. 35 of Surah An - Nisa---Principles.

The procedure prescribed in the West Pakistan Family Courts Act, 1964 is different from the procedure of trial under the Civil Procedure Code and that before passing any judgment and giving a decree, the West Pakistan Family Courts Act provides at two stages that the Family Court shall undertake exercise of trying to bring about the compromise between the parties at pre-trail stage and also on the conclusion of the trial, but before pronouncement of the judgment. These provisions appear to be in consonance with the command of Allah Almighty in Surah An-Nisa. (Ayat No. 35).

A bare reading of command of Allah Almighty as described in the said Surah, reveals that efforts are to be made by induction of one Hakam from the family of husband and one from the family of wife for ultimate reconciliation or compromise, so the family ties between the husband and wife remains intact. It is the spirit of said ayat of Surah An-Nisa that Ss. 10 and 12 of the West Pakistan Family Courts Act have been promulgated to give effect to the said Ayai from Surah An-Nisa.

It is generally said that "it is better to have no house than to have a broken one" i.e., all efforts should be made that spouses even if separated are brought to re-union. Principle of bringing about compromise between the spouses for their union/reunion is to be applied even in ancillary matters, like dispute between husband and "wife in respect of dower, dowry, maintenance and all other allied matters under consideration before the court.

The Preamble of the West Pakistan Family Courts Act speaks of settlement of disputes and disposal of the matter relating to marriage and family affairs. So, the Preamble has its two parts; one "settlement of disputes" and the other "disposal of the matter". The word "settlement" used in the Preamble appears to be more akin and in consonance with sections 10 and 12 of the Act, which provides that the Family Court shall take steps at pre and post trial stages to bring about compromise or settlement/reconciliation between the parties The second part of the Preamble relates to "disposal of disputes", which would mean that if settlement fails, then the dispute shall be disposed of on merits.

Efforts should be made by the Judge Family Court to bring about compromise/settlement between the spouses for their reunion .and for their living together. With the same spirit and on the same analogy, any such attempt made by a Judge Family Court for settlement of any matrimonial dispute including the issue of dower, dowry, maintenance etc., is to advance the concept of Islamic Principle i.e. settlement of dispute in an amicable manner. In short, the concept of compromise in matrimonial relations as mandated by Allah Almighty is to be read in sections 10 and 12 of the Act.

Naimuddin v. Mah-e-Talat 1984 CLC 638"; Murid Hussain v. Additional District Judge 2003 MLD 547; State v. Gulzar Muhammad 1998 SCMR 867; Dilshad Sultana v. Noor Muhammad PLD 1993 Quetta 1 and Mst. Sattaran Begum v. Muhammad Muqeem Civil Petition No.599 of 2010 rel.

----Preamble & S. 17---Civil Procedure Code (V of 1908), Preamble---Qanun-e-Shahadat (10 of 1984), Art. 1(2)---Exclusion of application of C.P.C. and Qanun-e-Shahadat to proceedings before Family Court---Object---Object of West Pakistan Family Courts Act, 1964 being to shorten agony of litigating parties and provide them justice as early as possible---Object of exclusion of C.P.C., and Qanun-e-Shahadat, 1984 was to avoid technicalities by providing a short, simple and speedy methodology for settlement and disposal of disputes relating to family matters---Family Court could adopt any procedure which being neither illegal nor expressly barred by West Pakistan Family Courts Act, 1964 nor offends any right of parties---Principles.

(d) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched:---Constitution of Pakistan, Arts. 185(3) & 199---Suit for recovery of maintenance allowance and dowry articles---Appointment of Arbitrators at request of defendant (husband) for settlement of his family disputes with plaintiff (wife) by giving undertaking to be bound by their decision, if any---Suit decreed by Family Court on basis of unanimous decision/award of Arbitrators upheld by Appellate Court, but set aside by High Court on ground that Arbitration Act, 1940 was not applicable to Family Courts---Validity---Defendant had voluntarily made statement on oath in court seeking resolution of his matrimonial disputes with plaintiff by nominating a panel of Arbitrators of his choice by giving an undertaking to be bound by their decision---Family Court after rejecting defendant's objection had incorporated in its judgment such decision of Arbitrators---Option to enter into a compromise at any stage of proceedings vested with parties before pronouncement of judgment---Defendant could make request for compromise at post trial stage and Family Court could not have refused same---No illegality had been committed in entrusting such dispute to Arbitrators in whom defendant had reposed full confidence by making unqualified and unconditional statement and that too on oath---Provisions of Ss. 10 and 12 of West Pakistan Family Courts Act, 1964 conferred jurisdiction upon Judge Family Court to make an effort to bring about compromise between spouses---Defendant's conduct in objecting such decision of Arbitrators was liable to be condemned---Supreme Court set aside impugned judgment and restored that of Appellate Court and Family Court in circumstances.

Naimuddin v. Mah-e-Talat 1984 CLC 638; Murid Hussain v. Additional District Judge 2003 MLD 547; State v. Gulzar Muhammad 1998 SCMR 867; Dilshad Sultana v. Noor Muhammad PLD 1993 Quetta 1 and Mst. Sattaran Begum v. Muhammad Muqeem Civil Petition No.599 of 2010 rel.

(e) West Pakistan Family Courts Act (XXXV of 1964)---

---Ss. 10 & 12---Pre-trail and post-trial conciliation proceedings---Scope---Option to enter into a compromise at any stage of trial vested with parties before pronouncement of judgment.

(f) Administration of justice---

----Conduct of a party before a court of law is always taken as relevant.

(g) Administration of justice---

----Undertaking given by a party in court of law---Validity---Retraction from such undertaking or its withdrawal could not be allowed as sanctity to judicial proceedings would be preserved at any cost---Qanune-Shahadat (10 of 1984), Art. 114---Principles.

Undertaking given by a party in the court of law has to be given sanctity, because on the one hand there is a legal estoppel, and on the other moral and ethical against it. Retraction from such undertaking cannot be allowed, because the same would result in distrust of the public litigants in the judiciary and would tarnish the sacred image of the Judicial Officers before whom once a consent is given by making a statement on oath and later on withdrawn, therefore, it would become a mockery of law and facts. If such practice is allowed to prevail and is ignored by the courts, it cannot add to the trust of public litigants in the judiciary and judicial system, but would reflect on lack of trust in the judiciary, which cannot be permitted, because sanctity to the judicial proceedings has to be preserved at any cost. [Qanun-e-Shahadat (10 of, 1984), Art. 114].

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellants.

Ex parte for Respondent No. 1.

Pro forma Respondents Nos. 2 and 3.

Date of hearing: 16th June, 2011.

SCMR 2011 SUPREME COURT 1378 #

2011 SCMR 1378

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Muhammad Moosa Khan Leghari and Muhammad Sair Ali, JJ

MUHAMMAD ATTIQUE---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 81 of 2006 in Jail Petition No. 374 of 2004, decided on 22nd April, 2009.

(On appeal from the judgment dated 29-7-2004, passed by Lahore High Court, Lahore in Criminal Appeal No. 33-J of 1999).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted to accused to examine the case so as to ensure that the settled principles necessary for safe administration of criminal justice had been observed.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Appraisal of evidence---Sentence, reduction in---Evidence of eye-witnesses had no discrepancies---Contradictions pointed out were insignificant---Accused was nominated in the F.I.R. and there was no plausible reason for substitution---Accused could not lead a defence to suitably refute the charges---Conviction of accused was consequently maintained---"Chhuri" secured on 4-9-1995 was sent to Chemical Examiner on 7-9-1995, which was received by him on 13-9-1995---Recovery witness had not stated that the "chhuri" secured from the possession of accused was stained with blood---Motive of pre-occurrence alteration, as set up by the prosecution, was not strong enough---One prosecution witness had been given up by the prosecution---Incident had taken place in the year 1995---Accused arrested on 2-9-1995 was incarcerated since then and was languishing in death cell as a condemned prisoner since 29-4-1999, the date of Trial Court judgment---Said narrated facts had constituted extenuating circumstances in favour of accused---Sentence of death of accused was modified to imprisonment for life in circumstances.

Mst. Bevi v. Ghulam Shabbir and another 1980 SCMR 859 ref.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Syed Amanat Ali Bukhari, D.P.-G, Punjab for the State.

Date of hearing: 21st April; 2009.

SCMR 2011 SUPREME COURT 1381 #

2011 SCMR 1381

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Anwar Zaheer Jamali, JJ

MUHAMMAD YAHYA KHAN KULACHI---Appellant

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE---Respondent

Civil Appeals Nos. 647 to 649 of 2006, decided on 28th April, 2011.

(On appeal from the judgment dated 10-1-2005 passed by Punjab Subordinate Judiciary Service Tribunal, Lahore High Court, Lahore in Service Appeals Nos.63 to 65 of 2001).

(a) Punjab Subordinate Judiciary 'Service Tribunal Act (Xli of 2005)---

----S. 4---Constitution of Pakistan, Art. 212(3)---Civil Judge First Class---Adverse remarks in Annual Confidential Report (A.C.R.) recorded by Countersigning Officer (Judge of High Court), expunction of---Dismissal of appeal by Service Tribunal---Validity---Supreme Court granted leave to appeal to consider inter cilia whether objective criteria had been followed in recording such remarks by Countersigning Officer.

(b) Punjab Subordinate Judiciary Service Tribunal Act (XII of 2005)---

----S. 4---Constitution of Pakistan, Art. 212(3)---Judicial Officer---Adverse remarks in Annual Confidential Report (A. C.R.) recorded by Countersigning Authority (Judge of High Court) without giving reasons therefor---Dismissal of appeal by Service Tribunal---Validity---Law had not imposed restriction on Countersigning Authority to give reasons for his assessment---Logic behind such omission to give reasons being to enable Countersigning Authority to make a transparent, independent and impartial assessment and give his opinion qua efficiency, performance, integrity and reputation of a Judicial Officer---Impugned remarks could not be brushed aside merely for absence of material in support thereof---Supreme Court dismissed the appeal---Principles.

According to the ACR Dossier of appellant and pursuant to key note instructions for its recording, the Countersigning Authority is not bound to give reasoning for his assessment. No such restriction has ever been laid down in any law that Countersigning Authority must give reasoning for his assessment. It is not an inadvertent omission, but on the contrary it is a deliberate omission and the logic behind it is that no restriction should be imposed on the Countersigning Authority enabling him to make a transparent, independent and impartial assessment and give his opinion qua efficiency, performance, integrity and reputation of a Judicial Officer. In the present case, adverse remarks were recorded by a Judge of the High Court, which cannot be set aside merely on the ground that no material whatsoever was available for recording such adverse remarks. The Judge of High Court is always well-conversant with the conduct, performance, reputation and integrity of a Judicial Officer and he could have various resources including judgment of Judicial Officer to make an independent assessment without any restriction and as may be deemed fit and proper. It is not necessary that every one must know about such resources or the material considered by a Judge of High Court while making such assessment. By no stretch of imagination, it can be imagined that Judge of High Court in the present case was not impartial or not dispassionate in evaluating the performance of a Judicial Officer while recording his ACRs. No mala fide whatsoever has been alleged against such Judge of High Court. Where Reporting Officer or Countersigning Officer has no personal motive or bias and they have evaluated performance of civil servant on the basis of their personal observation, information, same cannot be struck down merely on ground that they were not in a position to prove that adverse remarks recorded in A.C.R., were true. In such cases, approach should be that if no allegation is made against the Reporting or Countersigning Officer about mala fides and their own reputation is not clouded, their evaluation as to the performance of their subordinates is to be accepted.

Although all the civil servants are bound to be honest having unblemished integrity, the Judicial Officers are supposed to excel in this trait of character in view of the sacred and sensitive nature of their duties and the pivotal position which justice occupies in Islam according to Sura 4, Verse 135 of Holy Quran.

Islam also enjoins that those who perform the functions of Judges must not only possess profound knowledge and deep insight, but also be men of integrity and capable of holding the scales of justice even under all circumstances. Judicial Officers are expected to guard their reputation jealously and the Reporting Officers/Countersigning Officers are obliged to assess their conduct after careful consideration and without being led away by any prejudice or bias.

An impartial and unambiguous evaluation based on credible information, personal observation and reports of the Inspection Judges falls within the ambit of an objective evaluation. In other words, an evaluation can be termed as objective if it is unambiguous, impartial, unbiased, result of careful consideration and is based on credible information, personal observation of the Reporting Officer or the Countersigning Officer and reports of the Inspection Judges and it is not necessary that it must be based on tangible material like complaints in writing, resolutions of Bar Associations, transfer applications and assets etc. The adverse remarks with regard to integrity of an officer are made on the basis of his reputation and if the same are required to be supported with tangible material and instances of corruption, then there will be no difference between an A.C.R., and an enquiry report under the Efficiency and Discipline Rules.

Since it is not a legal mandatory requirement to assign reasoning while recording adverse remarks, no case is made out and accordingly the appeal is dismissed.

Registrar Lahore High Court, Lahore v. Mukhtar Ahmad Gondal, Civil Judge Ist Class, Okara C.A. 169 of 2003; Shabbir Hussain v. Lahore High Court 2004 PLC (CS) 236; F.Q. Matiullah Khan Alizai v. Chief Secretary 1994 SCMR 722; Lahore High Court v. Muhammad Jahangir Khan Goraya 1999 SCMR 2117; Shabbir Hussain v. Registrar Lahore High Court PLD 2004 SC 191; Chief Secretary, Government of Punjab, Lahore and 2 others v. Muhammad Saeed Zafar 1999 SCMR 1587 and Ch. Saeed Ahmed v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others 1996 SCMR 256 rel.

Mian Allah Nawaz, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellant.

Khadim Hussain Qaiser, Additional A.-G. for Respondent.

Date of hearing: 28th April, 2011.

SCMR 2011 SUPREME COURT 1389 #

2011 SCMR 1389

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

DEPUTY INSPECTOR-GENERAL INVESTIGATION, LAHORE---Petitioner

Versus

ASGHAR ALI---Respondent

Civil Petition No. 1745-L of 2010, decided on 26th May, 2011.

(On appeal from judgment dated 16-6-2010 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 1894 of 2009).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----R. 5(1)(b)(i) & (ii)---Competent authority to dispense with inquiry---Scope---Such authority could dispense with inquiry, if either he possessed documentary evidence or for reasons in writing satisfied that there was no need to hold an inquiry.

Zaka-ur-Rehman Awan, Additional A-G., Punjab for Petitioner.

Nemo for Respondent.

Date of hearing: 26th May, 2011.

SCMR 2011 SUPREME COURT 1392 #

2011 SCMR 1392

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

SAEED KHAN---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 387-L of 2011, decided on 13th June, 2011.

(On appeal from the order dated 27-5-2011 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 5615-B of 2011).

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss. 324/34---Attempt to commit qatl-e-amd and common intention---Bail, grant of---Case of further inquiry---Contradictions in medical and ocular evidence---Record highlighted glaring contradictions between F.I.R./supplementary statement and medico-legal certificate issued in respect of injured victim---According to F.I.R. supplementary statement alleged, victim had received three firearm injuries on his right lower leg at the hands of culprits but according to medico-legal certificate issued in respect of alleged victim there was only one fire shot received by him on his right lower leg-Such factors were sufficient to put caution regarding veracity of allegations levelled by complainant party against accused---Bail was allowed.

Raja Nadeem Haider, Advocate Supreme Court with C.M. Latif, Advocate-on-Record for Petitioner in person.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab with M. Nawaz, S.-I. for the State..

Khalid Ikram Khatana, Advocate Supreme Court with A.H. Masood, Advocate-on-Record for the Complainant.

Date of hearing: 13th June, 2011.

SCMR 2011 SUPREME COURT 1394 #

2011 SCMR 1394

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Muhammad Farrukh Mahmud and Mahmood Akhtar Shahid Siddiqui, JJ

SHAMSHAD ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 150 of 2007, decided on 13th May, 2009.

(On appeal from the judgment dated 5-4-2006 of the Lahore High Court, Lahore passed in Criminal Appeal No. 4-J of 2006 and Murder Reference No. 467 of 1999).

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appraisal of evidence---Promptly lodged F.I.R. and immediate investigation carried out on the spot had left no time with the complainant and the police to concoct a story for false implication of accused---Occurrence had taken place in the house of the complainant where she was residing with her accused husband and she, therefore, was a natural witness---Complainant had no motive for false implication of accused in the case---Statement of complainant inspired confidence, which was also corroborated by medical evidence---Solitary statement of a natural witness, even if. . not corroborated by any independent evidence, was sufficient to bring home the guilt of accused---Defence plea was without any basis---Accused had levelled false allegations against his real daughter after killing her---No misreading or non-reading of evidence or any legal infirmity could be pointed out in the impugned judgment---No mitigating circumstance for lesser punishment was available in favour of accused--- Appeal was dismissed in circumstances.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Mian Asif Mumtaz, D.P.-G., Punjab for the State.

Date of hearing: 13th May, 2009.

SCMR 2011 SUPREME COURT 1400 #

2011 SCMR 1400

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed, Muhammad Qaim Jan Khan and Syed Zawwar Hussain Jaffery, JJ

ARSHAD HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 121 of 2009, decided on 17th June, 2009.

(Against the judgment dated 11-2-2009 passed by Peshawar High Court, Peshawar in Criminal Appeal No. 650 of 2007).

Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Constitution of Pakistan, Art. 185(3)---Case of accused was not identical to that of two acquitted co-accused---No enmity existed between the parties---Ocular testimony, report of Chemical Examiner and recovery of "Charas" from the car had established the guilt of accused---Statements of prosecution witnesses had no material contradiction---Defence plea was not believable---Impugned judgment could not be imputed any infirmity or illegality justifying interference by Supreme Court---Leave to appeal was refused to accused accordingly.

M. Ilyas Siddiqui, Advocate Supreme Court for Petitioner.

Niaz Ahmed Rathore, P.-G., ANF for the State.

Date of hearing: 17th June, 2009.

SCMR 2011 SUPREME COURT 1403 #

2011 SCMR 1403

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Khilji Arif Hussain, JJ

DEPUTY DIRECTOR FOOD and others---Petitioners

Versus

Mehr ASIF NADEEM---Respondent

Civil Petition No. 547-L of 2011, decided on 8th June, 2011.

(Against judgment dated 23-12-2010 of Punjab Service Tribunal, Lahore, passed in Appeal No. 2964 of 2009).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Service Tribunal, powers of---Scope---Tribunal had jurisdiction to re-examine and re-assess material, which remained before departmental authorities, to conclude as to legality and justification of penalties imposed.

Zaka-ur-Rehman Awan, Additional A.-G. and Zulfiqar Ahmed, Enforcement Officer, Food Deptt. D.G. Khan for Petitioners.

Ch. M. Anwar Ghuman, Advocate Supreme Court for Respondent.

Date of hearing: 8th June, 2011.

SCMR 2011 SUPREME COURT 1405 #

2011 SCMR 1405

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

JAMSHAID ASMAT alias SHEEDU---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 321-L of 2011, decided on 27th May, 2011.

(On appeal from the order dated 26-4-2011 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 4485-B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 392---Robbery---Bail, grant of---Case of further inquiry---Cash, recovery of---Filing of Chadian---Tractor and trolley were stolen and accused was not named in F.I.R.-Sum of Rs. 95,000 in cash and gun were recovered from the possession of accused during investigation:--Nothing was available on the record of investigation to connect recovered cash or gun with the offence in issue---Investigation of the case had finalized and challan was submitted, therefore, physical custody of accused was not required at such juncture for the purposes of investigation---Case against accused called for further inquiry into his guilt---Bail was allowed.

Mushtaq Ahmad Mohal, Advocate Supreme Court for Petitioner.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab and Asjad Javed Ghural, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 27th May, 2011.

SCMR 2011 SUPREME COURT 1407 #

2011 SCMR 1407

[Supreme Court of Pakistan]

Present: Muhammad Moosa Khan Leghari and Sheikh Hakim Ali, JJ

FIDA HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 119 of 2008, decided on 2nd April, 2009.

(On appeal from the judgment and order of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 4-6-2008, passed in M.R. No. 35 of 2002/BWP, Criminal Appeal No. 140 of 2002/BWP).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Statements of eye-witnesses under S.161, Cr.P.C., were recorded after 10 days of the incident---One of the prosecution witnesses in his examination-in-chief had stated that deceased was lying dead in the wheat crop---Recovery memos and the evidence recorded by the Investigating Officer, seemed to be manipulated---Leave to 'appeal was granted for the safe administration of justice.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 2nd April, 2009.

SCMR 2011 SUPREME COURT 1408 #

2011 SCMR 1408

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed, Muhammad Qaim Jan Khan and Syed Zawwar Hussain Jaffery, JJ

THE STATE through Director-General, Anti Narcotics Force, Rawalpindi---Petitioner

Versus

ZAMRAY KHAN---Respondent

Criminal Petition No. 173 of 2008, decided on 19th June, 2009.

(Against the order dated 17-4-2008 passed by High Court of Sindh, Karachi in Criminal Bail No. 389 of 2008).

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Constitution of Pakistan, Art. 185(3)---Bail, cancellation of---Huge quantity of narcotics having been recovered from the possession of accused, bail granted to him by High Court was not sustainable in law---Positive report of Chemical Examiner had proved the guilt of accused---Reasonable grounds existed to believe the commission of a non-bailable offence by the accused and he was not entitled to concession of bail---Accused was also avoiding the process of law to face the proceedings---Bail granted to accused by High Court was cancelled in circumstances.

Niaz Ahmed Rathor, P.-G., ANF for Petitioner.

Nemo for the State.

Date of hearing: 19th June, 2009.

SCMR 2011 SUPREME COURT 1410 #

2011 SCMR 1410

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Khilji Arif Hussain, JJ

ABDUL RAFIMAN QURESHI -Petitioner

Versus

AUDITOR-GENERAL OF PAKISTAN and others---Respondents

Civil Petition No. 617- L of 2010, decided on 8th June, '2011.

(Against order dated 29-1-2010 of Federal Service Tribunal, Lahore, passed in M.P. No. 379 of 2008).

Service Tribunal Act (LXX of 1973)---

----S. 3---Service Tribunal---Review, power of---Scope---Service Tribunal has power of review---Second review petition before Tribunal not maintainable.

Petitioner in person.

Ms. Yasmin Saigol, D.A.-G. along with Sharif Bhatti, AAO (Legal) for Respondents.

Date of hearing: 8th June, 2011.

SCMR 2011 SUPREME COURT 1412 #

2011 SCMR 1412

[Supreme Court of Pakistani

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

MUHAMMAD JAMIL---Appellant

Versus

Mst. ISHRAT BANG and another---Respondents

Civil Appeal No. 420-L of 2010, decided on 21st June, 2011.

(On appeal from the order dated 23-6-2010 of the Lahore High Court, Lahore passed in Writ Petition No. 5790 of 2010).

West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 5, 14 & Sched.---Suit for recovery of dowry articles---Post-remand proceedings---Witnesses produced by defendant in pre-remand proceedings not produced for their cross-examination by plaintiff in post-remand proceedings---Validity---Family Court rightly excluded statements of such witnesses from consideration.

Aftab Ahmed Bajwa, Advocate Supreme Court for Appellant.

M. Amer Tauseef, Advocate Supreme Court for Respondents.

Date of hearing: 21st June, 2011.

SCMR 2011 SUPREME COURT 1414 #

2011 SCMR 1414

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Muhammad Farrukh Mahmud and Sayed Zahid Hussain, JJ

FEDERATION OF PAKISTAN through Secretary, Federal Board of Revenue, Islamabad and others---Petitioners

Versus

Messrs NEW AMMUR INDUSTRIES, LAHORE---Respondent

Civil Petition No. 514 of 2007, decided on 11th June, 2009.

(On appeal against the judgment dated 14-3-2007 passed by the Lahore High Court, Lahore in W.P. No. 6846 of 2006).

Sales Tax Act (VII of 1990)---

----S. 45-A---Constitution of Pakistan, Art. 185(3)--- Calling for record--- Re-opening of case--- Order-in-Original. was passed on 20-5-2005, determining sales tax amount which was deposited by respondent---In exercise of powers under S. 45-A of Sales Tax Act, 1990, Collector vide his order dated 10-6-2006, directed Deputy Collector to reopen Order-in-Original and pass fresh order, which order of Collector was set aside by High Court---Validity---Order-in-Original was passed by Deputy Collector (Adjudication), who was not subordinate to Collector and the same was not challenged in appeal by any officer of Sales Tax department---Power of Board (Collector or Collector Adjudication) under S. 45-A of Sales Tax Act, 1990, to call for record remained in force till 29-6-2005, whereafter the same was amended by Finance Act 2005---It was after the amendment under S.45(4) of Sales Tax Act, 1990, that powers were given to Collector to call for and examine record of any proceedings under Sales Tax Act, 1990, suo motu---Amendments incorporated through Finance Act, 2005, were prospective in nature and were not applicable---Supreme Court did not find any irregularity or any infirmity in judgment passed by High Court---Leave to appeal was refused.

Malik Itaat Hussain Awan, Advocate Supreme Court along with M.S. Khattak, Advocate-on-Record for Petitioners.

Mian Abdul Ghaffar, Advocate Supreme Court for Respondent.

Date of hearing: 11th June, 2009.

SCMR 2011 SUPREME COURT 1417 #

2011 SCMR 1417

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Ch. Ejaz Yousaf and Sardar Muhammad Aslant, JJ

MURAD BALOCH alias MICHEL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 384 of 2005, decided on 22nd May, 2009.

(On appeal from the judgment dated 19-3-2004 passed by the High Court of Sindh, Karachi, in Spl. A. T. Jail Appeal No. 7 of 2000).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(1)(a)---Criminal Procedure Code (V of 1898), S. 367---High Court had dismissed the appeal of accused maintaining' his conviction and sentence of death passed by Trial Court---Notwithstanding the fact that conviction of accused was not challenged and only commutation of his sentence was prayed on account of the role attributed to him, but still Appellate Court was bound to satisfy itself by examining the entire evidence on record qua the guilt of accused---Appellate Court was seized of the Murder Reference sent for confirmation of death sentence, which had to be disposed of on merits by examining the entire evidence bit-by-bit and by giving reasons to answer the Murder Reference in positive or otherwise, even if no appeal was preferred by the accused---Judgment recorded by High . Court being not in consonance with the mandatory provisions of S. 367, Cr.P.C. was set aside---Appeal of accused and the Murder Reference were directed to be decided afresh after hearing the parties, despite the concession of defence counsel of not pressing the appeal on merits.

Sahab Khan and 4 others v. The State and others 1997 SCMR 871; Farrukh Sayyar and 2 others v. Chairman. NAB, Islamabad and others 2004 SCMR 1 and Nusrat Ali v. The State 1997 SCMR 876 ref.

(b) Criminal Procedure Code (V of 1898)---

----Ss. 367 & 423---Disposal of appeals---Guidelines---Appeals have to be decided in the light of the relevant statutory provisions---At appellate stage whole original case stands reopened for its hearing and decision in accordance with law---Appeals cannot be decided summarily without analytically discussing the evidence on record, as the same have to be disposed of according to evidence.

Farrukh Sayyar and 2 others v. Chairman, NAB, Islamabad and others 2004 SCMR 1 and Nusrat Ali v. The State 1997 SCMR 876 ref.

M. Zamari Bhatti, Advocate Supreme Court for Appellant.

Raja Abdul Ghafoor, Advocate Supreme Court for the Complainant.

Zafar Ahmad Khan, Additional A.-G. Sindh for the State.

Date of hearing: 22nd May, 2009.

SCMR 2011 SUPREME COURT 1420 #

2011 SCMR 1420

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Zawwar Hussain Jaffery, JJ

Criminal Petition No. 387-L of 2008

Rana MUHAMMAD ASLAM---Petitioner

Versus

AZMAT BASHIR and others---Respondents

(Against the order dated 3-9-2008 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 955-H of 2008).

Criminal Petition No. 403-L of 2008

BADAR MUNIR---Petitioner

Versus

AZMAT BASHIR and others---Respondents

(Against the order dated 3-9-2008 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 955-H of 2008).

Criminal Petitions Nos. 387-L and 403-L of 2008, decided on 30th March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 491---Constitution of Pakistan, Art. 185(3)---High Court while setting the detenu at liberty had imposed special costs of Rs. 50,000 upon a police Sub-Inspector and of Rs. 25,000 upon the police Inspector, vide impugned order---Detenu was recovered by the Bailiff of the court from a room of the police station, who had been arrested by the Sub-Inspector and kept under illegal detention for twenty days without having produced him before. any court of law and also subjected him to physical torture, which fact was supported by his medical report---Sub-Inspector had later on handed the detenu over to the Inspector, Investigation incharge---Accused petitioners could not produce any piece of evidence before High Court showing the arrest of detenu being legal---Detenu himself had explained the entire incident regarding his detention, before High Court in the presence of both the petitioners, who could neither refute the statements of the detenu and the Bailiff, nor contradict the medical report---Impugned order being legal, just and apt to the facts and circumstances of the case, was not open to any exception and the findings whereof did not call for any interference by Supreme Court--However, amount of costs imposed on the petitioners was slightly on higher side and the same was reduced to Rs. 25,000 in case of the Sub-Inspector and to Rs, 10,000 in case of Inspector in the interest of justice---Petitions were converted into appeals and partly allowed accordingly.

Khan Muhammad v. SHO 1995 SCMR 1283 and Sallan v. Lal 1978 SCMR 83 ref.

Rana Muhammad Arif, Advocate Supreme Court for Petitioner (in Criminal Petition No. 387-L of 2008).

Syed Tayyab Mehmud Jaffery, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Petitioner (in Criminal Petition No. 403-L of 2008).

Amanat Ali Bukhari, D.P.-G. for the State (in Criminal Petition No. 387-L of 2008).

Amanat Ali Bukhari, D.P.-G. for Respondent (in Criminal Petition No. 403-L of 2008).

Mian Tariq Ahmed, Additional A.-G. on Court's Call (in Criminal Petitions Nos. 387-L and 403-L of 2008).

Date of hearing: 30th March, 2009.

SCMR 2011 SUPREME COURT 1424 #

2011 SCMR 1424

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Khilji Arif Hussain, JJ

MUNIR HUSSAIN---Petitioner

Versus

CHANGAZ KHAN and others---Respondents

C.P. No. 447-L of 2008, decided on 17th June, 2011.

(On appeal against the judgment dated 15-4-2008 passed by Lahore High Court, Multan Bench, Mutlan in RSA No. 27 of 1993).

Civil Procedure Code (V of 1908)---

----O.XLI, R.19---Limitation Act (IX of 1908), S. 5 & Art. 168---Constitution of Pakistan, Art. 185(3)---Application for re-admission of appeal dismissed for want of prosecution---Delay of one (1) year and ten (10) days, condonation of---Petitioner's plea that limitation and condonation of delay being matters of technicalities were liable to be ignored by courts while administering justice---Dismissal of such application by High Court---Validity---Petitioner had not particularized in application for condonation of delay by raising any plausible ground or disclosing date and day of his knowledge about dismissal of appeal---Such an indolence would cultivate a right in opposite party, which could not be lightly dislocated, to maintain judicial balance---Supreme Court repelled such plea and dismissed petition for leave to appeal.

Anwar Khan v. Fazal Manan 2010 SCMR 973 distinguished.

Ghulam Farid Sanotra, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 17th June, 2011.

SCMR 2011 SUPREME COURT 1426 #

2011 SCMR 1426

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Mian Saqib Nisar, JJ

Prof. Dr. SHAMIM HASSAN, UNIVERSITY OF HEALTH SCIENCES and another---Petitioners

Versus

Dr. WASEEM ABBAS ZAIDI and others---Respondents

Civil Petitions Nos. 1213 and 1379-L of 2010, decided on 26th May, 2011.

(Against the judgment dated 13-5-2010 passed by Punjab Service Tribunal, Lahore in Appeal No. 1930 of 2009).

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 9(1) & 10---Appeal to Service Tribunal by a person not aggrieved by any final order under S. 9(1) of Removal from Service (Special Powers) Ordinance, 2000 would not be maintainable.

M. Yasin Bhatti, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Petitioners (in C.P. No. 1213-L of 2010).

Siraj-ul-Islam, Additional A.-G., Punjab for Petitioners (in C.P. No. 1379-L of 2010).

Mehmood Ashraf Khan, Advocate Supreme Court for Respondents 1 to 7 (in both cases).

M. Yasin Bhatti, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Respondent No. 8 (in C.P. 1379-L of 2010).

Ejaz Farrukh, Senior Law Officer, for Health Department.

Date of hearing: 26th May, 2011.

SCMR 2011 SUPREME COURT 1428 #

2011 SCMR 1428

[Supreme Court of Pakistan]

Present: Muhammad Moosa Khan Leghari and Sheikh Hakim Ali, JJ

JUMMA---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 176 of 2008, decided on 3rd April, 2009.

(On appeal from the judgment dated 2-7-2008 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Criminal Appeal No.106-J of 2003 and Murder Reference No. 19 of 2003).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan, Art. 185(3)---Death sentence was awarded to accused/petitioner on statement of complainant who was stated to be the single eye-witness---Evidence of such witness, however, was not of unimpeachable character---Said witness did not appear to be credible and trustworthy---Conflict existed between the ocular evidence and the medical evidence---Evidence in the case required to be reappraisal---Leave to appeal was granted.

Zaman Bhatti, Advocate Supreme Court for Petitioner.

Siddiqui Khan Baloch, D.P.-G. for the State.

Date of hearing: 3rd April, 2009.

SCMR 2011 SUPREME COURT 1429 #

2011 SCMR 1429

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

MUHAMMAD ILYAS SHEIKH---Petitioner

Versus

SECRETARY/CHAIRMAN, MINISTRY OF RAILWAYS and others---Respondents

Civil Petition No. 1608-L of 2010, decided on 3rd June, 2011.

(Against the order dated 28-6-2010 passed by Federal Service Tribunal, Lahore in Appeal No. 230-L of 2007).

Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 4(1)((b)(iv)---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan, Art. 212(3)---Dismissal from service---Absence from duty without sanctioned leave after expiry of ex-Pakistan medical leave--Non-joining of duty by appellant after department refused his request for three years further leave---Dismissal of appeal by Service Tribunal---Validity---Appellant himself was not available for personal hearing as he was out of Pakistan as per his own request for extension of leave---No rule of natural justice or requirement of law regarding notice or hearing or about regular enquiry had been infringed---Department had not committed any illegality in proceeding against appellant particularly after refusal of his request for extension of leave, he did not join duty, which he was bound to do---Appellant had not raised any substantial question of law of public importance---Supreme Court dismissed petition for leave to appeal in circumstances.

Kamil Hussain Naqvi, Advocate Supreme Court with Imtiaz A. Shaukat, Advocate-on-Record and Rana Habib-ur-Rehman, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd June, 2011.

SCMR 2011 SUPREME COURT 1430 #

2011 SCMR 1430

[Supreme Court of Pakistan]

Present: Muhammad Moosa Khan Leghari, Zia Perwez and Syed Zawwar Hussain Jaffery, JJ

NASEER and others---Appellants

Versus

KHUDA BAKHSH and others---Respondents

Criminal Appeal No. 424 of 2008, decided on 18th December, 2008.

(On appeal from the order dated 17-10-2008 passed by Single Judge of the High Court of Sindh, Circuit Bench Sukkar in Criminal Miscellaneous Application No. 86 of 2008).

Criminal Procedure Code (V of 1898)---

----Ss. 173 & 190---Constitution, of Pakistan, Art. 185---Submission of challan---Concerned police recommended the disposal of the case as false---Magistrate concerned, approved the summary submitted by the police---High Court, however, set aside order passed by the Magistrate and directed the S.P. (Investigation) to submit challan of the case---After passing of said order, the police re-investigated the case and submitted the challan before the competent court---Grievance raised by the counsel for appellants was that the order passed by the High Court to the extent of submission of challan of the case was invalid, unwarranted in law and without jurisdiction---Validity--Section 173, Cr.P.C. provided that on conclusion of investigation, the concerned S.H.O. was required to submit a report of the result thereof in the prescribed manner to the Judicial Magistrate competent to take cognizance under S.190, Cr. P. C. ---No power vested with any court including a High Court to override the said legal provision and direct the police either not to submit the said report or to submit the said report in a particular manner---Order of the High Court, to the extent of setting aside the order of the Magistrate passed. on the summary submitted by the police, appeared to be correct, but further direction to the police for submission of challan, was un-warranted and not sustainable in law---Power of investigation into accusation made in the First Information Report, vested with the police---On the basis of material collected by the police, the police had either to send up accused persons to stand trial or to submit a report to the Magistrate concerned for disposal of case in accordance with law.

Mahmood A. Qureshi, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Appellants.

Ainuddin, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Respondent No.1.

Shahadat Awan, P.-G. Sindh for the State.

Date of hearing: 18th December, 2008.

SCMR 2011 SUPREME COURT 1433 #

2011 SCMR 1433

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

MUHAMMAD HUSSAIN and 2 others---Petitioners

Versus

EXECUTIVE DISTRICT OFFICER (HEALTH), MANDI BAHAUDDIN and others---Respondents

Civil Petition Nos. 646-L to 648-L of 2010, decided on 27th May, 2011.

(On appeal against the judgment dated 11-1-2010 passed by the Punjab Service Tribunal, Lahore, in Appeals Nos. 2056, 2057 and 2058 of 2009).

Punjab Service Tribunals Act (IX of 1973)---

----S. 4---Constitution of Pakistan, Art. 212(3)---Promotion order, recalling of---Such order was alleged by department to have been procured fraudulently---Dismissal of appeal by Service Tribunal on basis of report of Inquiry to the effect that appellant had failed to establish his promotion order having been passed by Departmental Promotion Committee---Plea of appellant that such inquiry was not legal as Members of Promotion Committee having considered working paper with regard to promotion of appellant were not examined during inquiry---Validity---Inquiry report did not clearly show whether Members of Promotion Committee were examined by Inquiry Officer or not---Supreme Court set aside impugned judgment and directed Secretary of the Department to constitute Inquiry Committee in terms of statement made by Law Officer and ensure conclusion of enquiry within specified time.

Aliya Neelam, Advocate Supreme Court, Naveed Sh. Advocate Supreme Court and Tasneem Amin, Advocate-on-Record for Petitioners.

Jawad Hassan, Additional A.-G. along with Dr. Khalid Pervez Kh., Distt. Officer Health, Farooq Amjad Nasir, Office Supdt. EDO Health Office, Mandi Bahauddin on Court's Call.

Date of hearing: 27th May, 2011.

SCMR 2011 SUPREME COURT 1435 #

2011 SCMR 1435

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Zawwar Hussain Jaffery, JJ

ASHFAQ AHMED---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 66-K of 2008, decided on 20th October, 2008.

(On appeal from the order dated 1-9-2008 of the High Court of Sindh at Karachi, passed in Criminal Transfer Application No. 312 of 2008).

Criminal Procedure Code (V of 1898)---

---S. 498---Constitution of Pakistan, Art. 185(3)---Bail before arrest, refusal of---Counsel for the petitioner after arguing the matter at considerable length, under instructions of the petitioner, with a view to resort to appropriate remedies available to the petitioner under the law, did not press the petition and undertook that petitioner would surrender before the Trial Court---Petition stood dismissed having not been pressed---Order passed granting interim pre-arrest bail to the petitioner was recalled and surety bonds, submitted with the Trial Court, stood discharged/cancelled.

M. Ashraf Leghari, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Petitioner.

Mehmood A. Qureshi, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for the Complainant.

Nemo for Respondent.

Date of hearing: 20th October, 2008.

SCMR 2011 SUPREME COURT 1436 #

2011 SCMR 1436

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Mian Saqib Nisar, JJ

ABDUL MAJEED---Petitioner

Versus

MANAGER, PIA, LAHORE and others---Respondents

Civil Petition No. 2045-L of 2010, decided on 23rd June, 2011.

(Against the judgment dated 6-10-2010 passed by Lahore High Court, Lahore in ICA No. 128 of 2008).

Pakistan International Airlines Corporation (Service and Discipline) Regulations, 1985---

----R. 76---Constitution of Pakistan, Arts. 185(3) & 199---Constitution petition---Compulsory retirement from service without any show-cause notice---Order of Single Bench of High Court directing Authority to reinstate petitioner in service and hold regular enquiry, if any, against him---Intra Court Appeal filed by Authority accepted by Division Bench of High Court---Joint request by parties to Supreme Court for disposing of petition for leave to appeal with an observation that Authority might hold a regular inquiry against petitioner and pass order after hearing him within specified time---Validity---Supreme Court converted the petition into appeal and accepted the same accordingly without going into question as to whether constitutional petition was maintainable as Authority established under an Act had no statutory rules.

Aurangzeb Mirza, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Ch. M. Sharif, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Respondents.

Date of hearing: 23rd June, 2011.

SCMR 2011 SUPREME COURT 1438 #

2011 SCMR 1438

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed, Muhammad Qaim Jan Khan and Syed Zawwar Hussain Jaffery, JJ

THE STATE through Director-General, Anti Narcotics Force, Rawalpindi---Petitioner

Versus

QAISAR HAFEEZ---Respondent

Criminal Petition No. 150 of 2008, decided on 23rd June, 2009.

(Against the order dated 11-4-2008 passed by High Court of Sindh, Karachi in Bail Application No. 361 of 2008).

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Constitution of Pakistan, Art. 185(3)---Cancellation of bail, refusal of---High Court had rightly granted bail to accused after having found his case requiring further inquiry---Case of accused was at the verge of conclusion after examination of six prosecution witnesses by Trial Court and cancellation of his bail merely on technical grounds was not appropriate---Accused had not abused the concession of bail at any time and was facing the trial proceedings---Impugned order of bail was based on proper appreciation of material on record and did not suffer from any infirmity or illegality calling for interference by Supreme Court---Petition was dismissed accordingly.

Niaz Ahmed Rathore, P.-G., ANF and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Zulfiqar Khalid Malouka, Advocate Supreme Court for the State.

Date of hearing: 23rd June, 2009.

SCMR 2011 SUPREME COURT 1441 #

2011 SCMR 1441

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

DISTRICT EDUCATION OFFICER (MEE), BAHAWALNAGAR and others-Appellants

Versus

Mst. FOUZIA NAZIR and 2 others---Respondents

Civil Appeals Nos. 111-L to 113-L of 2011, decided on 26th May, 2011.

(On appeal against the judgments dated 6-7-2010, 2-6-2010 and 22-6-2010 passed by the Lahore High Court, Bahawalpur Bench in W.Ps. Nos. 179 of 2010, 5346 of 2009 and 290 of 2007).

Constitution of Pakistan---

----Arts. 185(3) & 199---Constitutional petition---Selection of petitioner against two posts i.e. Elementary School Educator (ESE) and Senior Elementary School Educator (SESE) --Issuance of appointment letter to petitioner for post of SESE---Revision of merit list by Authority after petitioner having worked on such post for one and a half year---Withdrawal of petitioner's appointment letter by Authority for not being on top of revised merit list and issuance of appointment letter to respondent on post of SESE---Order of High Court passed in constitutional petition not to disturb petitioner---Validity---Supreme Court granted leave to appeal to consider as to whether High Court could direct that notwithstanding revised merit list, petitioner should be accommodated.

Faisal Zaman Khan, Additional A.-G., M. Shafique, Principal, HSS Donga Bonga, Bahwalnagar and Zubair Khan, Dy. Secretary (Legal) Education Department for Petitioners.

Ahmed Mansoor Chishti, Advocate Supreme Court for Respondent No. 1 (in C.A. No. 111-L of 2011).

Nemo for Respondents (in all other cases).

Date of hearing: 26th May, 2011.

SCMR 2011 SUPREME COURT 1444 #

2011 SCMR 1444

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Mian Hamid Farooq and Syed Zawwar Hussain Jaffery, JJ

ZIA alias AHMI---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 294-L of 2008, decided on 29th April, 2009.

(Against the judgment dated 2-7-2008 passed by Lahore High Court, Lahore in Criminal Appeal 151 of 2001 and Murder Reference No. 167 of 2001).

Penal Code (XLV of 1860)---

----Ss.302 & 338-E---Criminal Procedure Code (V of 1898), S.345(2)---Constitution of Pakistan, Art 185(3)---Parties had entered into compromise, the genuineness whereof had been ascertained by the Trial Court---Deceased had a minor daughter and minor son and Defence Saving Certificates in favour of both of them worth Rs. 3,90,000 were purchased---Incharge National Savings Centre concerned was directed not to encash the said Defence Saving Certificates, unless the minors, after attaining majority, produced a certificate from the Court of Guardian Judge concerned---Compromise being genuine, was accepted under S.345(2), Cr.P.C., read with S.338-E, P.P.C.---Compromise and petition after conversion into appeal, were accepted---Impugned judgment of High Court was set aside and accused was acquitted of the charge and was directed to be released.

Mian M. Mudassar Bodla, Advocate Supreme Court for Petitioner.

Mian Ghulam Hussain, Advocate-on-Record for the Complainant.

Irshad Hussain Bhatti, D.P.-G. for the State.

Date of hearing: 29th April, 2009.

SCMR 2011 SUPREME COURT 1446 #

2011 SCMR 1446

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Raja Fayyaz Ahmed and Khilji Arif Hussain, JJ

GENERAL TYRE AND RUBBER CO. PAK LTD.---Appellant

Versus

DEPUTY COLLECTOR, COLLECTORATE OF CUSTOMS CENTRAL EXCISE AND SALES TAX, KARACHI and another ---Respondents

Civil Appeal No. 1577 of 2006, decided on 30th September, 2009.

(On appeal from the judgment dated 27-1-2006 of the High Court of Sindh, Karachi passed in Spl. Sales Tax A. No. 38 of 2004).

(a) Sales Tax Act (VII of 1990)---

---Ss. 3(1)(a), 3(3), 33(2)(cc), 34, 36 & 45---Sales Tax General Order No.1 of 1998, dated 17-6-1998---Constitution of Pakistan, Art.185(3)---Leave to appeal was granted by Supreme Court to consider whether imput tax was paid by manufacturer on supplies not owned by him would be adjustable against output tax paid by him on such supplies going out of his factory; whether adjustment of input tax was permissible only in respect of goods which belonged to vendor and not in respect of goods which belonged to vendee and were received by hint only for the purpose of manufacturer; whether provisions of Sales Tax General Order No. 1 of 1998, dated 17-6-1998, would prevail over provisions of S. 3(1)(a) and S. 3(3) of Sales Tax Act, 1990; and whether Customs, Excise and Sales Tax Appellate Tribunal and High Court in view of material and evidence available were justified in holding that vendee did not have invoice of payment of sales tax so as to adjust input tax against output tax.

(b) Sales Tax Act (VII of 1990)---

----Ss. 2(12), 3(1)(a), 3(3), 33(2)(cc), 34, 36 & 45 [as substituted by Finance Ordinance (XXI of 2000)]---Sales Tax General Order No. 1 of 1998, dated 17-6-1998---Sales tax---Input tax, adjustment of---Appellant company got raw material mixed from another factory due to damage to its own mixing machinery by accidental fire---Appellant company claimed adjustment of input tax for payments made to that other factory which adjustment was declined by authorities and notice was issued for recovery of sales tax along with additional tax and penalty as well---Appeals before Customs, Excise and Sales Tax Appellate Tribunal and High Court were dismissed and order passed by authorities was maintained---Validity---Before eruption of fire in factory of appellant, mixing process of given raw materials was being carried out through their own unit of machinery and its own staff thus never before the company claimed adjustment of input tax on account of use of such machinery and thus appellant company on such factual plain advanced claim for adjustment of input tax not backed by any provision of Sales Tax Act, 1990---Pecuniary jurisdiction of Deputy Collector was enhanced up to Rupees two and half million by virtue of amendment in S. 45 of Sales Tax Act, 1990, which was in force at the relevant time---As appellant did not supply any goods as defined in S.2(12) of Sales Tax Act, 1990, therefore, authorities had rightly refused to adjust input tax claimed by appellant---Supreme Court declined to interfere in the judgment of High Court---Appeal was dismissed.

Executive District Officer (Education), Rawalpindi v. Muhammad Younis, 2007 SCMR 1835; Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others 2007 SCMR 262; Messrs Thatta Cement Company, Thatta v. Customs, Central Excise and Sales Tax Appellate Tribunal Karachi and 2 others 2003 PTD 1899 and Collector of Customs, E. & S.T. and Sales Tax v. Pakistan State Oil Company Ltd. 2005 PTD 2446 ref.

Aziz A. Sheikh, Advocate Supreme Court for Appellant.

Raja M. Iqbal, Advocate Supreme Court for Respondents.

Date of hearing: 30th September, 2009.

SCMR 2011 SUPREME COURT 1451 #

2011 SCMR 1451

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

RASHID AHMED---Petitioner

Versus

CHIEF EXECUTIVE OFFICER, GEPCO and others---Respondents

Civil Petition No. 1690-L of 2010, decided on 26th May, 2011.

(On appeal against the order. dated 5-7-2010 passed by the Federal Service Tribunal, Lahore, in Appeal No. 93(L) of 2008).

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3 & 10---Industrial Relations Ordinance (XXVIII of 1969), S.25-A---Constitution of Pakistan, Art. 212(3)---Dismissal from service under provisions of Removal from Service (Special Powers) Ordinance, 2000---Employee of an Electric Power Company---Grievance petition of employee accepted by Labour Court, but dismissed by High Court in appeal filed by Authority on the ground that Labour Court lacked jurisdiction as such company was a statutory body and owned by Federal Government, thus, its employee had remedy against an order of departmental authority before Service Tribunal---Dismissal of employee's appeal by Service Tribunal on ground that the company had no statutory rules, thus Service Tribunal had no jurisdiction against impugned penalty---Validity---Supreme Court granted leave to appeal to consider as to whether High Court could have accepted appeal of authority shortly on ground that Labour Court had no jurisdiction; and whether confusion over jurisdiction would not entitle employee to seek condonation of delay in challenging such order.

Civil Petitions Nos.1863 of 2009, 2191 of 2005, 804-K of 2009, 1247 of 2009, 12-K, 13-K and 62 - 64 of 2010 ref.

Petitioner in person:

Aurangzeb Mirza, Advocate Supreme Court and Mahmood ul Islam, Advocate-on-Record for Respondents.

Date of hearing: 26th May, 2011.

SCMR 2011 SUPREME COURT 1453 #

2011 SCMR 1453

[Supreme Court of Pakistan]

Present: Javed Iqbal and Nasir-ul-Mulk, JJ

MUHAMMAD SHAFI and others---Appellants

Versus

SULTAN MAHMOOD and others---Respondents

Civil Appeal No. 1781 of 2000, decided on 6th June, 2011.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 5-10-2000 passed in C.R. No. 786 of 1987).

(a) Punjab Pre-emption Act (I of 1913)---

----S. 21---Superior right of pre-emption---Scope---Superior pre-emptor who purchases property from original vendee can defeat a suit for pre-emption against same property.

(b) Punjab Pre-emption Act (I of 1913)---

----S. 21---Civil Procedure Code (V of 1908), O. VI, R.2---Superior right of pre-emption---Pleadings---Plea not raised in pleadings---Effect---Land in question was initially transferred in favour of original vendees through a consent decree which was further sold by original vendees through different transactions in favour of subsequent vendees---Trial Court decreed the suit in favour of pre-emptors but Lower Appellate Court dismissed the suit---High Court in exercise of revisional jurisdiction restored judgment and decree passed by Trial Court---Validity---Instrument of transfer in favour of superior pre-emptor need not mention that the transfer was being made in exercise of such right but to enforce the same as a defence in pre-emption suit, it must be expressly pleaded like any other right---Vendees did not expressly, in their written statements, plead superior-right or equal right of pre-emption and such right was not even asserted by their witnesses in their testimony---Vendees neither laid any foundation in pleadings nor . led any evidence for enforcement of their right, therefore, they could not be given benefit of a right which they never asserted---Vendees could not enforce their right of pre-emption in absence of expressly pleading the same in written statement and in evidence---Supreme Court declined to interfere in the judgment and decree passed by High Court---Appeal was dismissed.

Abdul Rashid Khan v. Mst. Nasim Akhtar 1974 SCMR 509; Din Muhammad v. Abdul Rehman Khan 1992 SCMR 127; Mool Chand v. Ganga Jal AIR 1930 Lah. 356 and Jas Raj Juniwal v. Gokal Chand Jaini AIR 1935 Lah. 808 ref.

Muhammad Din v. Muhammad Aslam PLD 1954 Lah. 541; Harbhagwan Das v. Partap Singh AIR 1938 Lah. 242; Mst. Fateh Bibi v. Ahmad Khan PLD 1971 Lah. 171 and Ghulam Muhammad v. Khushi Muhammad PLD 1973 SC 444 distinguished.

Khawaja v. Muhammad Din 2005 SCMR 666 and Amir Shah v. Ziarat Gul 1998 SCMR 593 rel.

Gulzarin Kiani, Advocate Supreme Court,' M.S. Khattak, Advocate-on-Record and Muhammad Munir Paracha Advocate Supreme

Court for Appellants.

Muhammad Hanif Niazi, Advocate Supreme Court for Respondents Nos. 1 and 2.

Ex parte for Respondents Nos. 3 to 5.

Date of hearing: 6th June, 2011.

SCMR 2011 SUPREME COURT 1460 #

2011 SCMR 1460

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Mian Saqib Nisar, JJ

Mst. JANNAT BIBI -Appellant

Versus

SARAS KHAN---Respondent

Civil Appeal No. 595-L of 2009, decided on 20th June, 2011.

(Against the order dated 12-1-2005 passed by Lahore High Court, Lahore in C.R. No. 2723 of 2004).

(a) Specific Relief Act (I of 1877)---

----S. 42-Civil Procedure Code (V of 1908), O.I, R.9---Constitution of Pakistan, Art. 185(3)---Suit for declaration of title to suit land---Contest between private parties-Non-joinder of Development Authority (LDA) as defendant in suit---High Court non-suited plaintiff on such failure---Validity---Plaintiff could not be denied relief on ground of mis-joinder or non joinder of a party---Duty of court to do justice and not to knock out parties on technical grounds---Development Authority could be a proper party, but not necessary party, on which ground relief could not be denied to plaintiff-Supreme Court set aside impugned order and remanded case to High Court for decision afresh on merits.

(b) Civil Procedure Code (V of 1908)---

----O. I, R.9---Misjoinder or non joinder of a party---Effect---Plaintiff could not be denied relief on such ground---Duty of court would be to do justice and not to knock out parties on technical grounds.

Appellant in person.

Nemo for Respondent:

Date of hearing: 20th June, 2011.

SCMR 2011 SUPREME COURT 1462 #

2011 S C M R 1462

[Supreme Court of Pakistan]

Present: Javed Iqbal, Asif Saeed Khan Khosa and Amir Hani Muslim, JJ

MUHAMMAD JAVED and another---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 1 and 2 of 2011, decided on 7th June, 2011.

(On appeal against the judgment dated 25-5-2010 passed by the Lahore High Court, Lahore, in Criminal Appeals Nos. 253, 414 and Criminal Revision No. 200 of 2004).

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd--- Reappraisal of evidence--- Mitigating circumstances---Sentence, quantum of---Dispute between the parties was with regard to return of loan by deceased to accused---Three incidents took place on the day of occurrence between the parties and it was the last incident in which two persons were murdered---Trial Court convicted both the accused under S. 302(6), P.P.C. and sentenced then to death but High Court altered the sentence to imprisonment for life---Validity---Conduct of parties was that none of them approached police station in spite of two incidents which took place between them prior to occurrence and it had established that either party was not inclined to involve area police---Complainant party had also roped all brothers of accused as co-accused, five of then were acquitted by Trial Court whereas the sixth was acquitted by High Court---Prosecution witnesses deposed that all accused were firing at complainant party but deceased persons had received single bullet injury on their person---Extreme youth, sudden provocation, influence of an elder and question of family honour etc. were covered by phrase "extenuating and mitigating circumstances"---If any case fell within such circumstances, a court, in law, was justified to award lesser penalty---Case of accused was covered by one of the categories of phrase mitigating circumstances---High Court, though had not spelt out reasons for awarding lesser punishment to accused in its judgment, had rightly commuted sentence of death of accused to life imprisonment in view of mitigating circumstances.

Latif Ullah v. The State 2007 SCMR 994; Muhammad Afzal v Muhammad Asghar PLD 2000 SC 12; Syed Hamid Mukhtar Shah v. Muhammad Azam 2005 SCMR 427; Shahid Ghafoor v. The State 2007 SCMR 1338 and Zulfiqar Ali v. The State 2008 SCMR 796 ref.

Muhammad Sharif v. Muhammad Javed alias Jeeda Tedi PLD 1976 SC 452 rel.

Ch. Afrasiab Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants (in Criminal Appeal No. 1 of 2011).

Anwar Nawaz Mirza, Advocate Supreme Court for Appellants (in Criminal Appeal No. 2 of 2011).

Asjad Javed Ghural, Additional P.-G., Punjab for the State.

Date of hearing: 7th April, 2011.

SCMR 2011 SUPREME COURT 1469 #

2011 SCMR 1469

[Supreme Court of Pakistan]

Present: Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

Messrs AXLEPRODUCTS LIMITED---Petitioner

Versus

Messrs ALLIED BANK OF PAKISTAN LTD.---Respondent

Civil Petition No. 19-K of 2009, decided on 10th February, 2009.

(On appeal from the order dated 8-10-2008 passed by High Court of Sindh, Karachi in F.A. No. 72 of 2007).

(a) Civil Procedure Code (V of 1908)---

----O. V, R. 20(1)(e)---Service of summons through publication in press---Validity---Such service could only be resorted to upon failure of other modes under C.P.C.

(b) Financial Institutions (Recovery of Finances) Ordinance (XL VI of 2001)---

----Ss. 9 & 12(2)---Constitution of Pakistan, Arts. 25 & 185(3)---Application for setting aside of ex party decree---Service of summons effected upon defendant through publication in press---Plea of defendant that no personal service had been effected upon him either through bailiff or registered post or courier; and that summons had been pasted at the address, where defendant's office had ceased to exist---Dismissal of such application by Banking Court upheld by High Court in appeal---Validity---Provision of S. 9 of Financial Institutions (Recovery of Finances), Ordinance, 2001 relating to service of summons simultaneously through all modes being different from that in C.P.C., Supreme Court granted leave to appeal to consider as to whether substituted service would be valid without resorting to other modes; and that a statute providing a special procedure for trial in banking matters might be justifiable on ground of reasonable classification and whether same principle could be extended to S. 9 of Financial Institutions (Recovery of Finances) Ordinance, 2001 relating merely to service of summons.

Mobarak Ali v. First Prudential Modaraba (C.Ps. No. 139-K and 273-K of 2006 and Messrs Ahmad Autos and another v. Allied Bank of Pakistan Limited PLD 1990 SC 497 ref.

Saalim Salam Ansari, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioner.

Aziz-ur-Rehman, Advocate Supreme Court and A.S.K..Ghori, Advocate-on-Record for Respondent.

Date of hearing: 10th February, 2009.

SCMR 2011 SUPREME COURT 1471 #

2011 SCMR 1471

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

MUHAMMAD HANIF---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 199-L of 2011, decided on 22nd June, 2011.

(On appeal from the order dated 26-1-2011 of the Lahore High Court, Lahore passed in Criminal Appeal No. 39 of 2011).

Control of Narcotic Substances Act (XXV of 1997)---

---Ss. 6, 7, 8, 9(c), 14, 15 & 16---Criminal Procedure Code (V of 1898), S. 516-A---Superdari of vehicle---Principle---Petitioner was registered owner of vehicle from which narcotics was recovered---No other person had come forward to claim ownership or possession of vehicle in question---Petitioner was not accused person in the case and he undertook to produce the relevant vehicle before any court of law if and when required to do so-Effect-Investigating agency was not justified in treating or taking possession of the vehicle as case property---Supreme Court directed that vehicle in question should not to be treated as case property and the same was handed over to petitioner on Superdari---Appeal was allowed.

Javed Hayat and another v. The State PLD 2006 Lah. 167 rel.

Mrs. Tayyaba Ramzan Chaudhry, Advocate Supreme Court for Petitioner.

Asjad Javed Ghural, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 22nd June, 2011.

SCMR 2011 SUPREME COURT 1473 #

2011 SCMR 1473

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

NAZEER AHMAD---Petitioner

Versus

GEHNE KHAN and others---Respondents

Criminal Petition No. 249-L of 2009, decided on 29th June, 2011

(Against the judgment dated 3-3-2009 passed by Lahore High Court, Multan Bench in Criminal Appeal No. 361 of 2007, Criminal Revision No. 264 of 2007 and Murder Reference No. 457 of 2007).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan, Art. 185(3)---Acquittal of accused---Benefit of doubt---Delay in F.I.R.---Chance witnesses--Unexplained delay of seven hours in lodging F.LR. and two eye-witnesses resided at a distance of six/seven acres from place of occurrence---Accused were declared innocent during investigation, it was night occurrence and source of light was allegedly a torch which was never taken into possession---Delay in having postmortem conducted---Conviction and sentence awarded to accused by Trial Court was set aside by High Court and accused were acquitted of the charge---Validity---Delay in having post modem conducted adversely reflected on credibility of prosecution version---Consideration which weighed with High Court were cogent and borne out from record---Complainant failed to refer to any piece of evidence which could persuade Supreme Court to interfere in the findings recorded by High Court---Leave to appeal was refused.

Mrs. Fakhar-un-Nisa, Advocate Supreme Court and Faiz-ur-Rehnman, Advocate-on-Record for Petitioner.

Mazhar Sher Awan, Additional P.-G. for the Respondents.

Date of hearing: 29th June, 2011.

SCMR 2011 SUPREME COURT 1475 #

2011 SCMR 1475

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Zia Perwez, and Syed Zawwar Hussain Jaffery, JJ

MUSLIM COMMERCIAL BANK LTD. and others---Appellants

versus

MUHAMMAD SHAHID MUMTAZ and another---Respondents

Civil Appeal No.1673 of 2007, decided on 16th April, 2009.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 14-12-2006 passed in Labour Appeal No.408 of 2003).

(a) Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 2(xxviii) & 25-A---Constitution of Pakistan, Art.185(3)---Dismissal from service---Officer Grade-II posted as Branch Manager of Bank---Grievance petition---Maintainability---Order of Labour Court reinstating such Manager in service with back-benefits upheld by High Court in appeal filed by Bank---Banks' plea that such Manager was not a workman for he as its duly constituted attorney could engage, employ, control and dismiss employees whether engaged by him or Bank or otherwise---Validity---Supreme Court granted leave to appeal to consider the issue by reappraising entire evidence.

(b) Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 2(xxviii) & 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss.2(h)(i) & 12(3)---Dismissal from service---Remedy---Status of employee, determination of---Scope---If such dismissal of employee did not arise out of an industrial dispute, then his status as to whether or not he was a workman, would be determined under provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

Mustehkum Cement Limited v. Abdul Rashid 1998 SCMR 644 rel.

----Ss. 2(xxviii) & 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss.2(h)(i) & 12(3)---Constitution of Pakistan, Art.185(3)---Dismissal from service---Officer Grade-II posted as Branch Manager of Bank---Charge of misappropriation of amount deposited by customers in Bank---Grievance petition---Maintainability---Order of Labour Court accepting grievance petition upheld by High Court in appeal filed by Bank---Validity---Dismissal of respondent had not arisen out of an industrial dispute, thus, his status as to whether or not he was a workman, had to be determined under provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Bank, much prior to present incident, had executed power of attorney in favour of respondent giving him all administrative control of its Branch with powers to hire and fire-Authenticity of such power of attorney could not be doubted for having been signed by President of Bank, attested by its two Vice-Presidents and notarized by Notary Public---Powers contained in such power of attorney showed that nature of duties and functions of respondent was managerial and supervisory and not clerical---Transfer of respondent after present incident to another Branch not in a managerial capacity had been done to facilitate process of inquiry--Status of respondent at relevant time being that of Branch Manager of Bank was relevant for determining his remedy to approach Labour Court---Courts below had erred in law to place burden on Bank to prove that respondent was not a workman-Labour Court had no jurisdiction to entertain grievance petition of respondent---Supreme Court set aside impugned judgments of courts below and dismissed grievance petition in circumstances.

Allied Bank of Pakistan Ltd. v. Muhammad Humayun Khan and others 1988 SCMR 1664; Dilkusha Enterprises Ltd. v. Abdul Rashid and others 1985 SCMR 1882; National Bank of Pakistan v. Punjab Labour Court No.5 Faisalabad 1993 SCMR 672; National Bank of Pakistan v. Muhammad Aslam Dar 1999 SCMR 157 and National Bank of Pakistan v. Punjab Labour Court No.7, Gujranwala 1992 SCMR 1891 ref.

Mustehkum Cement Limited v. Abdul Rashid 1998 SCMR 644; General Manager, Hotel Intercontinental v. Bashir A. Malik PLD 1986 SC 103 and National Bank of Pakistan v. Punjab Labour Court No.5 Faisalabad 1993 SCMR 672 rel.

Farooq Zaman Qureshi, Advocate Supreme Court for Appellants.

Abdul Rehman Siddiqui, Advocate Supreme Court for Respondents.

Date of hearing: 6th March, 2009.

SCMR 2011 SUPREME COURT 1483 #

2011 SCMR 1483

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Mian Saqib Nisar, JJ

ALLAH DITTA---Petitioner

Versus

AIMNA BIBI---Respondent

Civil Petition No. 317-L of 2008, decided on 23rd June, 2011.

(On appeal from the judgment dated 29-2-2008 of the Lahore High Court, Lahore passed in C.R. No. 2027 of 2007).

Qanun-e-Shahadat (10 of 1984)---

----Art. 100---Specific Relief Act (I of 1877), S. 42---Constitution of Pakistan, Art. 185(3)---Suit for declaration---Land belonging to plaintiff (an illiterate and pardanashin lady) got transferred by defendant in his name through mutation of gift---Denial of such gift by plaintiff---Suit decreed by Trial Court upheld by Appellate Court and High Court---Defendant's plea was that such mutation being more than thirty years old was liable to be presumed as correct by virtue of Art.100 of Qanun-e-Shahadat, 1984--- Validity--- Presumption of correctness available under Art. 100 of Qanun-e-Shahadat, 1984 in respect of thirty years old document was only in respect of signatures and every other part thereof purporting to be in handwriting of any particular person---Mutation entry in Revenue Record was not in handwriting of plaintiff---Not compulsory for court to presume genuineness of documents, rather court might require production of document to prove its execution by producing witnesses---Supreme Court refused to grant leave to appeal in circumstances.

Ahmed Awais, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 23rd June, 2011.

SCMR 2011 SUPREME COURT 1485 #

2011 SCMR 1485

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

RAB NAWAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 30-L of 2011, decided on 21st June, 2011.

(On appeal from the judgment dated 6-10-2010 of the Lahore High Court, Lahore passed in Criminal Appeal No. 20 of 2005).

Penal Code (XLV of 1860)---

----S. 228---Criminal Procedure Code (V of 1898), S. 22---Interrupting judicial proceedings---Ex-officio Justice of Peace---Proceedings---Accused was a police official and allegation against him was that he failed to carry out an order passed by Ex-officio Justice of Peace---Ex officio Justice of Peace convicted the accused and sentenced him for imprisonment for ten, days---Conviction and sentence awarded by Ex-officio Justice of Peace was maintained by High Court---Validity---Proceedings conducted. by Ex-officio Justice of Peace were not judicial proceedings, therefore, conviction and sentence recorded for an offence under S. 228, P.P.C. were illegal and unsustainable---Provisions of S.228, P.P.C. were attracted to an insult or interruption during some judicial proceedings and no such insult or interruption during any judicial proceeding had been alleged against accused---Only allegation against accused was that he had failed to carry out any order passed on an earlier occasion by Ex-officio Justice of Peace---Supreme Court set 'aside the conviction and sentence awarded to accused by the courts below and he was acquitted of the charge---Appeal was allowed.

Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470(FB) and Pir Abdul Qayyuni. Shah v. S.H.O. and 4 others 2005 PCr.LJ 357 rel.

Sikandar Javed, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Appellant.

Mazhar Sher Awan and Asjad Javed Ghurral, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 21st June, 2011.

SCMR 2011 SUPREME COURT 1487 #

2011 SCMR 1487

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan, Muhammad Qaim Jan Khan and Syed Zawwar Hussain Jaffery, JJ

NAZAR MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 294 of 2003, decided on 27th February, 2009.

(On appeal from the judgment dated 30-1-2001 passed by Lahore High Court, Lahore, in Criminal Appeal No. 1007 of 1988).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan, Art. 185(2)(a)---Acquittal appeal decided by High Court in absentia---Validity---Trial Court had convicted the accused under S. 304, Part-II, P.P. C. and sentenced him to three years' R.I. with fine on two counts for the murder of the deceased and her minor son directing the sentences to run concurrently---Appeal filed by the State against acquittal of accused under S. 302, P.P. C. was accepted by High Court vide impugned judgment, sentencing the accused to imprisonment for life under S.302, P.P. C. on two counts making the sentences to run concurrently---High Court had heard and decided the appeal in absence of accused without making any observation of having taken any step regarding the arrest of the accused before the conclusion of the appeal---Impugned judgment had been delivered by High Court one day before the arrest of accused in pursuance of non-bailable warrants---No one had appeared on behalf of accused before High Court, who was condemned unheard---Said judgment, therefore, was coram non judice and the same having been passed in absentia, the delay of 447 days in filing the present direct appeal was condoned---Arguments on behalf of both the parties on merits and demerits of the case including the maintainability of acquittal appeal on behalf of the State, could be advanced before the appellate court---Impugned judgment was, consequently, set aside and the case was remanded to the appellate court to decide the acquittal appeal on merits by providing an opportunity of hearing to the accused.

Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203; Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274; Abdul Majid v. Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan PLD 1964 SC 422; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 and Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 ref.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Ch. Munir Sadiq, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 12th February, 2009.

SCMR 2011 SUPREME COURT 1494 #

2011 SCMR 1494

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Asif Sneed Khan Khosa, JJ

Mst. AZIZ LATIF and others---Petitioners

Versus

LAHORE DEVELOPMENT AUTHORITY through D.-G.---Respondent

C.R.Ps.Nos. 58 to 62-L of 2009 in Civil Petition Nos. 1726 to 1730-I of 2008, decided on 28th June, 2011.

(To review this Court's order dated 28-4-2009 passed in Civil Petitions Nos. 1726-L to 1730-L of 2008).

Lahore Development Authority Act (XXX of 1975)---

----S. 16---Supreme Court Rules, 1980, O. XXVI, R.1---Civil Procedure Code (V of 1908), S. 114 & O. XLVII, R. 1---Constitution of Pakistan, Art.188---Review of Supreme Court judgment---Judgment of High Court accepting constitutional petition on ground that Review Committee constituted by Supreme Court and headed by Chairman, Lahore Development Authority (LDA) had- reported that review petitioner was allottee of plot, which could not be given to him for one reason or the other and that alternate could not be given to him as relevant scheme was no longer in vogue---Order of Supreme Court setting aside such judgment of High Court---Review petition---Plea of review petitioner was that while setting aside such judgment, Supreme Court had not considered the report of LDA on basis of which High Court had accepted constitutional petition---Validity---Lahore Development Authority had not objected to acceptance of review petition subject to converting petition for leave to appeal filed by LDA into appeal and its fixation for early hearing---Supreme Court set aside order under review and converted such leave petition into appeal and fixed the same for hearing.

Aurangzeb Mirza, Advocate Supreme Court and Tasneem Amin, Advocate-on-Record for Petitioners (in all cases).

A.R. Arshad Malik, Advocate Supreme Court and Sohail Aslam, Dy Director Estate Management, LDA for Respondent No. 1.

Date of hearing: 28th June, 2011.

SCMR 2011 SUPREME COURT 1496 #

2011 SCMR 1496

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, ACJ, Saiyed Saeed Ashhad and Hamid Ali Mirza, JJ

MUBARAK ALI---Petitioner

Versus

FIRST PRUDENTIAL MODARABA---Respondent

Civil Petitions Nos. 139-K and 273-K of 2006, decided on 4th January, 2009.

(On appeal from the judgment dated 22-3-2006 in Ist Appeal No.15 of 2006 and dated 5-4-2006 in Ist Appeal No. 42 of 2006 passed by the High Court of Sindh, Karachi).

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 12---Ex parte decree, setting aside of---Plea of defendant was that he had left his city residence address of which was available with Bank; that lie was not served with summons at his village residence; that none of the newspapers in English and Urdu were being delivered at his village; that bailiff in his report stated on oath that he had gone to city address given by Bank, where he could not find defendant as some one else was residing there---Validity---Bailiff in his report had specifically stated that no person of name of defendant was residing at address given by Bank---Bank had not challenged defendant's statement on oath regarding non-delivery of such newspapers at his village---Bank had not examined any person from Newspaper Agency to state that such newspapers did reach or were being delivered at defendant's village---Court had not received acknowledgement due receipt of registered post---Defendant could not be presumed to have been duly served with summons in case of non-delivery of newspapers at his village or non-receipt thereof by him at his residence in village-Parties should be given due opportunity to defend lis and put up their case before court and decree be passed on merits---If claim of Bank was genuine and based on valid documents, then they would ultimately be entitled to decree even if defendant was given chance to apply for leave to defend suit---Ex parte decree was set aside in circumstances.

Neel Keshav, Advocate Supreme Court, Suleman Habibullah, Advocate-on-Record for Petitioner.

Nadeem Akhtar, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Respondent.

Date of hearing: 4th January, 2007.

SCMR 2011 SUPREME COURT 1500 #

2011 SCMR 1500

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Mian Saqib Nisar, JJ

Rana MUHAMMAD KHALIL---Petitioner

Versus

REGIONAL AUDIT CHIEF and others---Respondents

Civil Petition No. 1340-L of 2009, decided on 27th May; 2011.

(Against the order dated 27-5-2009 passed by Lahore High Court, Lahore in W.P. No. 10204 of 2009).

Civil Procedure Code (V of 1408)---

----S. 9 & O. VII, R. I1---Constitution of Pakistan, Art. 185(3)---Suit by employee against employer Bank---Rejection of plaint by forums below on ground that defendant-Bank was a statutory body, and relationship between parties was that of Master and Servant, thus Service Tribunal had jurisdiction in such matter and not civil court---Validity---Impugned order was self-contradictory-Once relationship between parties was held to be that of Master and Servant, then plaint could not have been rejected on ground that appropriate forum in such matter was Service Tribunal---Claim being agitated by plaintiff in his suit was not based on his terms and conditions of service---Courts below had wrongly rejected plaint---Supreme Court set aside impugned orders and directed parties to appear before Trial Court, which would decide suit in accordance with law.

Petitioner in person.

Mehmood-ul-Islam, Advocate-on-Record and Noor Muhammad Khan Chandia, Advocate Supreme Court for Respondent No. 1.

Date of hearing: 27th May, 2011.

SCMR 2011 SUPREME COURT 1501 #

2011 SCMR 1501

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Ijaz-ul-Hassan and Zia Perwez, JJ

MUHAMMAD KHALID and another---Petitioners

Versus

THE STATE and others---Respondents

J.P. No. 53 of 2007 and Criminal Petition No. 85 of 2007, decided on 15th June, 2009.

(On appeal from judgment dated 24-1-2007 of the Lahore High Court, Lahore, passed in Criminal Appeals Nos. 72-J and 544 of 2002).

Penal Code (XLV of 1860)---

----Ss. 302/34 &109---Constitution of Pakistan, Art. 185(2)---Reduction of sentence sought on the plea of self-defence---Accused was allegedly armed with .12 bore pistol---Medical evidence showed that only pellet injuries were found on the body of the deceased---High Court and the Trial Court had believed the ocular version of prosecution witnesses and the complainant as confidence-inspiring---Occurrence had taken place in the broad-daylight---Plea of self-defence seeking reduction in sentence taken by the accused was neither proved by him nor any evidence or circumstances supported said plea---Prosecution had succeeded in proving its case against the accused to the hilt---No extenuating circumstances were shown to exist for reduction of death sentence of the accused---Sentence of fine to the accused being not permissible under S.302, P.P.C. was set aside---No legal or factual infirmity having been found in the impugned judgment of High Court, petitions for leave to appeal were dismissed except to the extent of sentence of fine to the accused.

M. Zaman Bhatti, Advocate Supreme Court for Petitioners (in J.P. 53 of 2007).

Tariq Mehmood, Advocate Supreme Court for Petitioners (in Criminal Petition No. 85 of 2007).

Syed Ali Imran, D.P.-G. Punjab for the State.

Date of hearing: 15th June, 2009.

SCMR 2011 SUPREME COURT 1504 #

2011 SCMR 1504

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari and Sabihuddin Ahmed, JJ

HABIBULLAH BHUTTO---Appellant

Versus

COLLECTOR OF CUSTOMS and another---Respondents

Civil Appeal No. 1051-K of 2005 arising out of Civil Petition No.571-K of 2003, decided on 23rd October, 2008.

(Against the judgment dated 10-6-2003 passed by Federal Service Tribunal, Islamabad in Appeal No.221(K)(CS) of 2001).

(a) Government Servants (Efficiency and Discipline) Rules, 1973---

----R. 6-A---Disagreement of Authority with findings of Inquiry Officer or Authorized Officer---Effect-Authority, in such case ought to record proper reasons.

Chief Director, Central Directorate of National Savings, Islamabad and another v. Rabat Ali Sherwani 1996 SCMR 248 rel.

(b) Government Servants (Efficiency and Discipline) Rules, 1973---

---Rr. 5 & 6-A---General Clauses Act (X of 1897), S.24-A---Order of Authorized Officer for holding of fresh inquiry after accepting representation of accused officer against earlier ex parte inquiry--Effect---Earlier ex parte inquiry would stand completely wiped out and only findings recorded in fresh inquiry would be liable to be considered---Authorized Officer or Authority could disagree with findings of Inquiry Officer after giving notice to accused officer and recording reasons therefor, but could not place reliance upon findings on earlier ex parte inquiry, which stood annulled---Illustration.

----Rr. 5 & 6-A---Personal knowledge of Authority about facts of case---Validity---Authority, while exercising quqsi-judicial powers in disciplinary matters, could not import his personal knowledge to the facts of the case---When Authority had any personal knowledge, then it could cause relevant evidence to be produced before Inquiry Officer to enable him to arrive at a proper conclusion instead of making a mockery of whole legal process by allowing enquiry to proceed and waiting to exercise his revisional powers on basis of his personal knowledge irrespective of outcome of inquiry proceedings---Order of Authority imposing penalty would become illegal and tainted with bias, if he failed to communicate facts in his personal knowledge to accused -officer in show-cause notice or to mention in his order, but recorded same in secrecy of his files.

Amin-e-Ajam v. Central Board of Revenue and another 2007 SCMR 1581 and Muhammad Mohsin Siddiqi v. Government of West Pakistan PLD 1964 SC 64 rel.

M.M. Aqil Awan, Advocate Supreme Court for Appellant.

Shakeel Ahmed, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 23rd October, 2008.

SCMR 2011 SUPREME COURT 1513 #

2011 SCMR 1513

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

MUHAMMAD MUDDASAR---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 420-L of 2011, decided on 28th June, 2011.

(Against the order dated 23-5-2011 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 5619-B of 2011).

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 204---Pre-arrest bail, grant of---Private complaint---Issue of process---Effect---Accused was declared innocent during investigation and initially Trial Court had merely issued summons in private complaint---Pre-arrest bail was allowed.

Ch. Muhammad Riaz Ahmad, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner.

Asjad hived Ghural, Additional P.-G. for the State.

Date of hearing: 28th June, 2011.

SCMR 2011 SUPREME COURT 1514 #

2011 SCMR 1514

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bukhari, JJ

AKHTAR ZAMAN KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No. 605-L of 2009, decided on 1st July, 2009.

(Against order dated 25-5-2009 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 5547-B of 2008).

Customs Act (IV of 1969)---

----S. 156(1)(14)(14-A) & (77)---Constitution of Pakistan, Art. 185(3)---Bail, refusal of---High Court while referring to-different aspects of the case, came to the tentative view that sufficient material was available on record to connect the petitioner with the commission of offence---Challan had been submitted and trial of the case was underway---High Court had already directed the Trial Court to conclude the trial of the case within a period of six months---No view contrary to the one adopted by the High Court, could be taken in circumstances---Impugned order not suffering from any legal infirmity; was maintained.

Mian Abdul Ghaffar, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 1st July, 2009.

SCMR 2011 SUPREME COURT 1516 #

2011 SCMR 1516

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Khilji Arif Hussain, JJ

PROVINCE OF PUNJAB and others-Petitioners

Versus

Messrs AKHTAR AND CO.---Respondent

Civil Petition No. 275-L of 2008, decided on 16th June, 2011.

(Against order dated 25-2-2008 of Lahore High Court, Lahore, passed in FAO No. 14 of 2000).

West Pakistan Civil Courts Ordinance (II of 1962)---

----Ss. 17 & 18---Constitution of Pakistan, Art. 185(3)---Appeal---Pecuniary jurisdiction---Plea raised by authorities was that judgment in question was corm non judice and suffered from absence of pecuniary jurisdiction---Leave to appeal was granted to consider the plea raised or any other question which would arise at the time of hearing of appeal.

Aziz-ur-Rehman v. Ahmed Khan 2004 SCMR 1622 ref.

Shahid Mubeen, Additional A.-G. and Nazar Hayat, SDO for Petitioners.

Nemo for Respondent.

Date of hearing: 16th June, 2011.

SCMR 2011 SUPREME COURT 1517 #

2011 SCMR 1517

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Anwar Zaheer Jamali and Ghulam Rabbani, JJ

MUHAMMAD NADEEM alias BANKA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 77 of 2009, decided on 4th April, 2011.

(On appeal from the judgment dated 9-10-2008 passed by the Lahore High Court, Lahore in Criminal Appeal No. 168-J of 2002, Criminal Revision No. 589 of 2002 and Murder Reference No.299 of 2002).

(a) Penal Code (XLV of 1860)---

----S. 302---Qatl-e-amd---Appreciation of evidence---Truthful witness---Principle---Having made conflicting statements, the complainant cannot be considered a truthful witness.

(b) Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), S. 103---Qatl-e-amd---Recovery---Carrying of weapon by accused---Not only the recovery officer and marginal witness had shown different places of arrest and recovery of crime weapon from accused but they had also contradicted each other in other material aspects---Effect---It did not appeal to common sense that an accused of heinous crime of murder would instead of swiftly getting rid of the weapon used in commission of crime, prefer to carry the same all along after 10/11 days to be arrested in a dubious manner leading to its recovery to be used against him &is a strong corroboratory piece of evidence---Recovery of pistol was not established.

----S. 302(b)--- Qatl-e-amd---Reappraisal of evidence--- Benefit of doubt---First visit to place of occurrence---Delay in recovery---Sentence of death awarded to accused by Trial Court was maintained by High Court---Validity---On his first visit of place of occurrence, darkness did not come in the way of Investigating Officer in recording statements of witnesses, preparing inquest report etc. but he had to wait for day light and deferred farther proceedings for recovery of important pieces of evidence, such as empty, blood stained earth and recovery of cycle on which it was alleged that deceased and culprits were found going towards place of incident---At least Investigating Officer could have secured cycle and blood stained earth, when he could secure Chappal of deceased and do other things on his first visit of place of incident-Neither ocular evidence nor the evidence as to recovery of crime weapon was free from doubt, so also, the motive as alleged was not believable and a serious doubt pervade the whole case---Prosecution was under legal obligation to prove guilt of an offender beyond any shadow of doubt, in which it failed, therefore, the benefit must go to accused---Supreme Court set aside the conviction and sentence awarded to accused and he was acquitted of the charge---Appeal was allowed.

Aftab A. Khan, Advocate Supreme Court for Appellant.

Ahmad Raza Gillano, Additional P.-G. for the State.

Date of hearing: 4th April, 2011.

SCMR 2011 SUPREME COURT 1524 #

2011 SCMR 1524

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Sneed Khan Khosa, JJ

ANSAR MAHMOOD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 118-L of 2010, decided on 24th May, 2011.

(On appeal from the judgment dated 24-11-2009 of the Lahore High Court, Lahore passed in Criminal Appeal No. 1012 of 2005).

(a) Penal Code (XLV of 1860)---

---Ss. 302(b) & 149---Qatl-e-amd and rioting with deadly weapons---Appraisal of evidence---Free fight---Liability of accused---Principle---In a case of free fight every accused is liable only for the part played or injury caused by him.

(b) Penal Code (XLV of 1860)---

---- Ss. 302(b), 324/337-A(ii)/337-L(2)/148/149---Qatl-e-amd, attempt to commit Qatl-e-amd, Shajjah-i-Mudihah, hurt and rioting with deadly weapons---Reappraisal of evidence---Free fight---Common object, absence of---Sentence---Accused was convicted by Trial Court and variously sentenced including imprisonment for life---Conviction and sentence awarded under S. 302(b), P.P.C. read with S. 149, P.P.C., to accused was set aside by High Court but remaining convictions and sentences were maintained---Validity---After holding the case to be one of free fight, accused could not have been convicted for an offence under S.149, P.P.C. because there was no common object between culprits-Charge in respect of offence under S. 324, P.P.C. read with S.149, P.P.C. could not stick against accused because he had not been attributed any specific injury---In such case of free fight and for the same reason accused could also not have been convicted for offences under Ss. 337-A(ii) and 337-L(2). P.P.C. because it was never determined as to which particular injury, if any, had actually been caused by accused to injured victim---Supreme Court set aside conviction and sentence awarded to accused by the courts below and he was acquitted of the charge---Appeal was allowed.

Dr. Muhammad Akmal Saleemi, Advocate Supreme Court for Appellant.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab for the State.

Malik Muhammad Imtiaz Mahl, Advocate Supreme Court for the Complainant.

Date of hearing: 24th May, 2011.

SCMR 2011 SUPREME COURT 1527 #

2011 SCMR 1527

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

THE STATE and another---Petitioners

Versus

UMER HAYAT and another---Respondents

Criminal Petitions Nos. 386-L and 376-L of 2011, decided on 27th June, 2011.

(On appeal from the judgment dated 7-4-2011 passed by the Lahore High Court, Lahore in Criminal Appeals Nos. 219 and 357 of 2011).

(a) Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 12 & 39---Property, forfeiture of---Principle---Forfeiture of property is not automatic---Trial Court has to satisfy that assets in question were derived or generated or obtained in contravention of S.12 of Control of Narcotic Substances Act, 1997, and that too without providing opportunity of hearing not only to accused but also to persons who are "being affected by such order".

(b) Control of Narcotic Substances Act (XXV of 1997)---

----S. 39---Constitution of Pakistan, Art. 185(3)---Assets, forfeiture of---Property in question was ordered by Trial Court to be confiscated and the order was maintained by High Court---Plea raised by accused was that both the courts below concurrently did not appreciate importance of S.39 of Control of Narcotic Substances Act, 1997, in as much as onus of proving bona fide purchase of property in question was put on the accused without reference to evidence on record---Validity---Leave to appeal was granted by Supreme Court to consider the plea raised.

A.D. Naseem, Sp. Prosecutor ANF for Petitioners (in Cr. P. No.386-L of 2011).

Iqbal Mahmood Awan, Advocate Supreme Court and Faizur Rehman, Advocate-on-Record for Petitioners (in Cr. P. No.376-L of 2011).

Iqbal Mehmood Awan, Advocate Supreme Court for Respondents (in Cr. P. No. 386-L of 2011).

A.D. Naseem, Sp Prosecutor ANF for Respondent (in Cr. P. No. 376-L of 2011).

Date of hearing: 27th June, 2011.

SCMR 2011 SUPREME COURT 1531 #

2011 SCMR 1531

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Mian Saqib Nisar, JJ

MUKHTAR AHMAD---Petitioner

Versus

DEPUTY INSPECTOR-GENERAL OF POLICE and others---Respondents

C.P. No. 2014-L of 2010, decided on 21st June, 2011.

(On appeal from the judgment dated 23-9-2010 of the Federal Service Tribunal, Lahore passed in Appeal No. 277(L)CS of 2002).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan, Art. 212(3)---Appeal---Powers of Service Tribunal---Scope---Tribunal in absence of parties could not decide appeal on merit---Principles.

Mian Mahmood Hussain, Advocate Supreme Court for Petitioner.

Riaz Ahmed, DSP (Legal) for the Respondents.

Shahid Mobeen, Additional A.-G. on Court's Call.

Date of hearing: 21st June, 2011.

SCMR 2011 SUPREME COURT 1532 #

2011 SCMR 1532

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed and Asif Saeed Khan Khosa, JJ

SOHAIL KHAN and another---Petitioners

Versus

AFZAL HUSSAIN and others---Respondents

Criminal Petition No. 243 of 2010 and Jail Petition No. 213 of 2010, decided on 30th May, 2011.

(On appeal from the judgment dated 10-5-2010 of the Lahore High Court, Lahore passed in Criminal Appeal No. 249 of 2005, Murder Reference No. 609 of 2005).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art.185(3)---Qatl-e-amd---Leave to appeal, grant of---Contentions were that as per evidence on record the incident had taken place in front of the house of the accused party where the complainant party had come to launch murderous attack, in which injuries on head, chest and leg of the accused were inflicted with a blunt weapon, but the same had been suppressed and that plea of self-defence was introduced by the accused, who urged that he was subjected to aggression, therefore, it was to be examined as to whether in the given circumstances the accused could be held liable for qatl-e-amd or he had exceeded to the right of claimed self-defence---Leave to appeal was granted by Supreme Court to accused for reappraisal of entire evidence, in circumstances.

Sardar Muhammad Asmat Ullah Khan Advocate Supreme Court for Petitioners (in Crl. P. No. 243 of 2010).

M. Zaman Matti, Advocate Supreme Court for Petitioners (in J.P. No. 213 of 2010).

Sardar Asmat Ullah Khan, Advocate Supreme Court for the Complainant (in J.P. No. 213 of 2010).

Ahmed Raza Gillani, Additional P.-G. for the State.

Date of hearing: 30th May, 2011.

SCMR 2011 SUPREME COURT 1533 #

2011 SCMR 1533

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

MUHAMMAD AZEEM---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No. 320-L of 2011, decided on 6th June, 2011.

(On appeal from the judgment dated 14-3-2011 passed by Lahore High Court, Lahore in Criminal Miscellaneous Nos. 2281-B/2011/09).

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Penal Code (XLV of 1860), Ss. 420/467/468/471---Cheating and forgery---Bail, grant of--Case of further inquiry---Civil suit, pendency of---Complainant filed a civil suit two months prior to registration of case regarding same subject matter---No allegation of forgery and nothing was to be recovered from accused---Offences under Ss. 420 and 471, P.P.C. were bailable whereas Ss. 467 and 468, P.P.C. pertained to forgery, which issue required further inquiry so far as guilt of accused was concerned---Bail was allowed.

Pir S.A. Rashid, Advocate Supreme Court for Petitioner.

Mian Shah Abbas, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Respondents.

Ch. Z.A. Farooq, A.P.-G. for the State.

Date of hearing: 6th June, 2011.

SCMR 2011 SUPREME COURT 1535 #

2011 SCMR 1535

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Sair Ali and Tariq Parvez, JJ

Messrs ADNAN TRADING COMPANY---Appellant

Versus

APPELLATE TRIBUNAL CUSTOMS, CENTRAL EXCISE AND SALES TAX and others---Respondents

Civil Appeal No. 1599 of 2006, decided on 1st March, 2010.

(On appeal against the judgment dated 22-11-2006 passed by High Court in Special Tax Appeal No. 40 of 2004 on CMA. No. 135 of 2005).

Constitution of Pakistan---

----Art. 185(2)---Civil Procedure Code (V of 1908), O.XLI, R.19---Appeal, restoration of---Dismissal for non-prosecution-Appeal filed by appellant was dismissed by High Court due to non prosecution and the same was not restored on account of unfair conduct of appellant---Validity---Relief of restoration was dependent upon showing good and sufficient cause of absence of appellant---Supreme Court did not find any exception with the judgment passed by High Court whereby it declined to exercise its discretion in favour of appellant for non-existence of a good cause---Discretion so exercised by High Court was neither arbitrary nor erroneous---Appeal was dismissed.

Abdul Qadir Khan, Advocate Supreme Court for Appellant.

Ex parte for Respondent No.1.

Syed Arshad Hussain, Advocate Supreme Court for Respondents Nos. 1 and 2.

Date of hearing: 1st March, 2010.

SCMR 2011 SUPREME COURT 1537 #

2011 SCMR 1537

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Mian Saqib Nisar, JJ

YAR MUHAMMAD and 4 others---Petitioners

Versus

SECRETARY, FINANCE DEPARTMENT, GOVERNMENT OF PUNJAB and others---Respondents

Civil Petitions Nos. 723, 894, 895, 1071 and 1074-L of 2010, decided on 22nd June, 2011.

(Against the judgment dated 19-4-2010 passed by Punjab Service Tribunal, Lahore in SAs. Nos. 1190, 514, 1247, 1658, 1254 of 2003).

(a) Punjab Secretariat Allowance (Withdrawal) Act, 1997 (I of 1998)---

----S. 2---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan, Arts. 25 & 212(3)---Secretariat allowance---Refusal of authority to award such allowance to appellant (retired employee)---Appellant's plea that he was retired before promulgation of Punjab Secretariat Allowance (Withdrawal) Act, 1997, thus, he had a vested right to receive such allowance as a part of his pension; and that certain serving employees were being paid such allowance even after Punjab Secretariat Allowance (withdrawal) Act, 1997, thus, appellant be treated in such manner---Dismissal of appeal by Service Tribunal---Validity---Such allowance had been granted through an executive order i.e., vide Finance Department Letter No. FC.PC-2-1/88, dated 8-8-1988---Legislature had authority to take away or affect any vested right of a person retrospectively---Such allowance had been withdrawn by Punjab Secretariat Allowance (Withdrawal) Act, 1997 retrospectively by ordaining that such executive order would be deemed never to have been issued---Illegality, if committed by authority, could not be made standard for applying rule of equality---Supreme Court refused to grant leave to appeal.

(b) Vested right---

----Legislature has authority to take away or affect any vested right of a person retrospectively.

----Art. 25---Equality before law---Scope---Illegality could not be made standard for applying rule of equality.

Riaz Lone, Advocate Supreme Court for Petitioners (in C.P. No.723-L of 2010).

Jehangir Ashraf Vanice, Advocate Supreme Court for Petitioners (in CPs. Nos. 894, 895, 1071-L of 2010).

Petitioners in person (in C.P. No. 1074-L of 2010).

Jawwad Hassan, Additional A.-G. and Tariq M. Mirza, Dy. Secy. Finance Deptt. for Respondents (in all cases).

Date of hearing: 22nd June, 2011.

SCMR 2011 SUPREME COURT 1540 #

2011 SCMR 1540

[Supreme Court of Pakistan]

Present: Justice Tariq Parvez, Chairman, Mian Saqib Nisar, Asif Saeed Khan Khosa, Dr. Fida Muhammad Khan and Dr. Muhammad Al-Ghazali, JJ

IJAZ alias JAJU---Petitioner

Versus

THE STATE---Respondent

Jail Shariat Petition No. 7 of 2010, decided on 10th May, 2011.

(On appeal from the judgment dated 23-1-2009 passed by Federal Shariat Court, Islamabad in Criminal Appeal No. 232 of 2006).

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10(3)---Penal Code (XLV of 1860), S.337-L(2)---Zina-bil-Jabr, hurt---Constitution of Pakistan, Art.203-F(2B)---Trial Court had not misread or disregarded any significant part of the evidence---No particular points of law were pointed out on behalf of accused to have escaped the notice of both the courts below to indicate any failure to assess the evidence---Federal Shariat Court had rightly dismissed the appeal of accused---Even if the delay of 409 days in filing the present petition was condoned in the larger interests of justice, there was nothing else on record requiring any reappraisal of evidence or calling for a consideration of any new points coming forth in the submissions made by the defence counsel---Leave to appeal was refused to accused by Supreme Court, in circumstances.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Malik Irfan, Additional P.-G. Punjab for the State.

Date of hearing: 10th May, 2011.

SCMR 2011 SUPREME COURT 1543 #

2011 SCMR 1543

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

SUBEH SADIQ alias SAABO alias KALU---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 313-L of 2011, decided on 7th June, 2011.

(On appeal from the order dated 26-4-2011 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 2846-B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/109/148/149---Qatl-e-amd, abetment and rioting armed with deadly weapons---Bail, grant of---Case of further inquiry---Previous enmity---False implication---Investigating Officer found that accused was merely present at the scene of crime at relevant time---Accused was neither armed on the occasion of murder nor he caused any injury to any person and there existed pitched enmity between parties based upon previous murder---Effect---Possibility could not safely be ruled out of consideration regarding spreading the net wide by complainant party so as to falsely entangle accused in the criminal case---Investigation of the case regarding accused had already been finalized and his physical custody was not required at such stage for the purposes of investigation---Case against accused was one of further inquiry into his guilt within the purview of S. 497(2), Cr.P.C.---Bail was allowed.

Aish Bahadur Rana, Advocate Supreme Court for Petitioner.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 7th June, 2011.

SCMR 2011 SUPREME COURT 1545 #

2011 SCMR 1545

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Ghulam Rabbani, JJ

GHAFOOR KHAN (deceased) through LRs .---Appellants

Versus

ISRAR AHMED---Respondent

Civil Appeal No. 1352 of 2005, decided on 3rd August, 2009.

(On appeal from the judgment dated 23-9-2003 in C.R. No.510-D of 1997 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Civil Procedure Code (V of 1908), O. VI, R.5---Pleadings---Non-mentioning of necessary details of talbs in plaint---Effect---Non-mentioning of place, date and time of Talb-e-Muwathibat and date of issuance of notice of Talb-e-Ishhad, in terms of S. 13 of Punjab Pre-emption Act, 1991, is fatal for maintainability of suit for pre-emption.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559 and Haq Nawaz v. Muhammad Kabir 2009 SCMR 630 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Right of pre-emption---Necessary Talbs, making of---Proof---Truthfulness of witnesses---Suit was concurrently dismissed by Trial Court and Lower Appellate Court but High Court in exercise of revisional jurisdiction decreed the suit in favour of pre-emptor--Validity---Under S. 13(3) of Punjab Pre-emption Act, 1991, much stress was laid down on truthfulness of witnesses of Talb-e-Ishhad---Conflicting statements of pre-emptor and his witness were found on record, thus they could not be considered as truthful to place reliance on their testimony in regard to making of Talb-e-Ishhad---Pre-emptor claimed to have made Talb-e-Ishhad by sending notice, however, Trial Court did not accept the document as reliable piece of evidence---Both the courts below were not incorrect in their findings regarding notice of Talb-e-Ishhad---Pre-emptor failed to establish his case for award of decree of possession on the basis of pre-emption---Judgment and decree passed by High Court was set aside and the suit was dismissed---Appeal was allowed.

Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235 ref.

Ch. Afrasiab Khan, Advocate Supreme Court for Appellants.

Syed Ayub Bokhari, Advocate Supreme Court for Respondent.

Date of hearing: 3rd August, 2009.

SCMR 2011 SUPREME COURT 1550 #

2011 SCMR 1550

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ

WASI-UD-DIN---Appellant

Versus

FAKHRA AKHTAR and 4 others---Respondents

Civil Appeal No. 397 of 2008, decided on 23rd February, 2011.

(Against the judgment dated 30-1-2008 of the Lahore High Court, Lahore, passed in RSA No. 19 of 2007).

Benami transaction--

----Funds and motive---Proof---Evidence beyond pleadings---Plaintiffs claimed that suit properties were purchased by their sister from her own funds, thus she was the real owner of the properties and as their sister was survived by only one daughter, therefore, plaintiffs were also co-owners in the properties---Defendant was niece of plaintiffs and asserted that her mother was only benami owner and in fact the suit properties were purchased by her father---Plaintiffs contended that the funds were provided by their sister and there was no motive for the transaction to be benami in the name of sister of plaintiffs---Suit was concurrently decreed in favour of plaintiffs by Trial Court and Lower Appellate Court but High Court in exercise of appellate jurisdiction dismissed the same---Validity---Plaintiffs attempted to, show that some property belonging to their family was sold and proceeds thereof together with gold and silver belonging to their sister had been utilized for the purpose of purchasing properties in question---Such pleas were. neither taken in pleadings of plaintiffs nor there was any credible proof of such assertion---Bald statements could not be relied upon for the purpose of holding that sister of plaintiffs had any independent resources sufficient to enable her to purchase properties in dispute---Evidence on record was sufficient to show that sister of plaintiffs was not a lady of any independent means and she could not, therefore, had provided the funds for purchase of disputed properties---Evidence preponderantly showed that father of defendant had provided the funds for purchase of properties---Motive for benami transaction was only aide in guiding courts in cases where assertions in respect of benami were made---Dispute in such cases was factual in nature and any outcome must, therefore, be based on the facts and circumstances of that particular case---Supreme Court declined to interfere in the judgment and decree passed by High Court.

Amjad Sharif Qazi and others v. Salim Ullah Faridi and others PLD 2006 SC 777; Muhammad Amir v. Khan Bahadur and another PLD 1996 SC 267 and Mst. Zohra Begum and 6 others v. Muhammad Ismail 2008 SCMR 143 ref.

Syed Najam-ul-Hassan Kazmi, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Riasat Ali Chaudhry, Advocate Supreme Court for Respondent No. 1.

Ex parte for Respondents Nos. 2 and 3.

Nemo for Respondent No. 4.

Date of hearing: 23rd February, 2011.

SCMR 2011 SUPREME COURT 1555 #

2011 SCMR 1555

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

KHALID UMAR---Petitioner

Versus

Syed ATHAR IQBAL, CHAIRMAN PAKISTAN OVERSEAS EMPLOYMENT PROMOTERS and another---Respondents

Criminal Petition No. 1114-L of 2010, decided on 19th May, 2011.

(On appeal against order dated 1-10-2010 of the Lahore High Court, Lahore, passed, in Criminal Revision No. 989 of 2010).

Criminal Procedure Code (V of 1898)---

----Ss. 205 & 512---Personal attendance, dispensing with---Absconded accused---Plea raised by accused through his counsel was that due to visa problem he had been stuck in a foreign country, therefore, his personal attendance should be dispensed with---Validity---Absconder, ordinarily had no right of audience but in peculiar circumstances of the case and in view of undertaking given and fair stand taken by State, Supreme Court directed the accused to produce two sureties to Trial Court---Supreme Court directed that if accused failed to appear before court on the specified date, his surety bonds should be forfeited---Appeal was allowed.

A.D. Naseem, Advocate Supreme Court for Petitioner.

Respondent No. 1 in person.

Azar Latif Khan, D.A.-G. and Mahmood Arif Khokhar, A.D., FIA, Lahore on Court's Call.

Date of hearing- 19th May, 2011.

SCMR 2011 SUPREME COURT 1557 #

2011 SCMR 1557

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Khilji Arif Hussain, JJ

MUHAMMAD SALEEM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, GUJRANWALA and others---Respondents

C.P. No. 766-L of 2011, decided on 17th June, 2011.

(On appeal against the. judgment dated 6-4-2011 passed by Lahore High Court, Lahore in W.P. No. 142 of 2011).

West Pakistan Urban Rent Restriction Ordinance (IV of 1959)---

----Ss. 13 & 17---Ejectment order---Default in payment of rent by tenant---Order of Rent Controller determining total arrears of rent as due from tenant included time-barred rent---Validity---Time-barred rent ordered to be recovered from tenant would be excluded from such total rent---Question of amount of arrears of rent due and adjustment of its payment would be settled by Executing Court.

M. Hussain Awan, Advocate Supreme Court for Petitioner.

Imran Ahmed Malik, Advocate Supreme Court with Respondent No.3 in person.

Date of hearing: 17th June, 2011.

SCMR 2011 SUPREME COURT 1559 #

2011 SCMR 1559

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Khilji Arif Hussain, JJ

Meter NOOR MUHAMMAD---Petitioner

Versus

NAZIR AHMED---Respondent

Civil Petition No. 417-L of 2008, decided on 16th June, 2011.

(Against judgment dated 31-3-2008 of Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in RFA No. 10 of 1997).

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Stamp Act (II of 1899), S. 2(5)---Negotiable Instruments Act (XXVI of 1881), S. 4---Qanun-e-Shahadat (10 of 1984), Arts. 17(a) & 79---Constitution of Pakistan, Art: 185(3)---Suit for recovery of amount on basis of promissory note---Noncancellation of stamp on promissory note and non production of marginal witnesses by plaintiff to prove its execution---Validity---Supreme Court granted leave to appeal to consider questions as to whether short cause suit could not be treated as long cause suit in consequence, of purported non-cancellation of stamps on promissory note; what was the legal effect of partial non-cancellation of stamps on promissory note; whether plaintiff under Arts. 17 & 79 of Qanun-e-Shahadat, 1984, was obliged to produce both marginal witnesses despite deposition of scribe to the effect that promissory note and receipt was written by him and was' signed by defendant in his presence; and whether promissory note did require production of two marginal witnesses after promulgation of Qanun-e-Shahadat, 1984 or whether attestation of two witnesses on promissory note would under law change its nature.

Mian Javed Jalal, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 16th June, 2011.

SCMR 2011 SUPREME COURT 1560 #

2011 SCMR 1560

[Supreme Court of Pakistan]

Present: Javed Iqbal, Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

Dr. MUHAMMAD ANWAR KURD and 2 others---Appellants

Versus

THE STATE through Regional Accountability Bureau, Quetta---Respondent

Criminal Appeals Nos. 7, 8 and 9 of 2004, decided on 26th July, 2011.

(On appeal from judgment of Balochistan High Court, Quetta dated 17-2-2003 passed in Ehtesab Appeals Nos. 41, 42 and 49 of 2001).

(a) National Accountability Ordinance (XVIII of 1999)---

----Ss.15 & 25---Plea bargaining---Deemed conviction---Effect---Accused persons entered into plea bargaining and conviction was imposed upon them in view of S. 15 of National Accountability Ordinance, 1999---Accused sought setting aside of conviction on the ground that they did not know about such conviction at the time of entering into plea bargaining as the same was not available then in the National Accountability Ordinance, 1999---Validity---At the time of entering into and acceptance of plea bargain before Accountability Court, the accused, who were even otherwise well educated, were well apprised/aware of its legal consequences about deeming convictions and disqualifications, as imposed by Accountability Court, which were based on up to date amended National Accountability Ordinance, 1999---Accused deserved no leniency in the matter of their deemed conviction or disqualification---Any such leniency shown to accused at such stage would be contrary to the mandate of amended law at the relevant time and also against public policy that those who were found guilty on their plea bargain would again be accommodated to take yet another risk/chance of further irregularities---Supreme Court declined to interfere in conviction under S.15 of National Accountability Ordinance, 1999, awarded to accused persons by Trial Court at the time of their plea bargain---Appeal was dismissed.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Nabi Ahmad v. Home Secretary, Government of West Pakistan PLD 1969 SC 599; Mehreen Zaibun Nisa v. Land Commissioner PLD 1975 SC 397; Muhammad Mubeen-us. Salam v. Federation of Pakistan PLD 2006 SC 602; Asghari Khanum v. The State PLD 1980 SC 14; Ali Nawaz Shah v. State PLD 2003 SC 837 and Salmond's Jurisprudence (12th Edition of 1966) at page 128 ref.

(b) Interpretation of statutes---

----Proviso---Object and scope---By inserting a proviso with a section/ subsection is to provide an exception and to control or bar application of main section/subsection in certain cases--- Natural presumption of providing such proviso is to exclude general application of relevant section/subsection in the matter notified under the proviso---Proper function of proviso is that it qualifies generality of main enactment by providing an exception and taking out as it were, from main enactment---To say proviso should normally be construed not merely to limit or control but nullify the enactment and taking away completely (z right conferred by enactment is incorrect.

AIR 1961 SC 1596 and S. Sundaram v. V.R. Pattabhiraman AIR 1985 SC 582 rel.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellants.

Dr. Asghar Rana, Additional Prosecutor-General, NAB and Raja M. Ibrahim Satti, Senior Advocate Supreme Court for the State.

Date of hearing: 30th June, 2011.

SCMR 2011 SUPREME COURT 1581 #

2011 SCMR 1581

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

EXECUTIVE DISTRICT OFFICER (EDU.), RAWALPINDI and others---Petitioners

Versus

Mst. RIZWANA KAUSAR and 4 others---Respondents

C.Ps. Nos.1701-L, 1702-L, 1722-L, 1732-L and 1733-L of 2010, decided on 26th May, 2011.

(On appeal against the judgment, dated 22-6-2010 passed by the Punjab Service Tribunal, Lahore, in Appeals Nos.2123, 2606, 2602, 2607 and 2214 of 2009).

(a) Locus poenitentiae, principle of---

----Principle of locus poenitentiae would not arise in a situation when some benefit was awarded to a person against declared law.

Muhammad Nadeem Arif v. IGP Punjab, Lahore 2011 SCMR 408 rel.

(b) Civil service---

----Termination of service after few years of appointment---Appointment order found to be bogus/fake/irregular---Validity---Such charge was vague, non-specific and did not show any lapse on part of employee or commission of any fraud by him or non possessing of requisite qualification by him .or his appointment to be made by an incompetent officer---Department had not found performance of employee to be unsatisfactory---Impugned order was set aside in circumstances.

Muhammad Nadeem Arif v. IGP Punjab, Lahore 2011 SCMR 408; Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2009 PLC (C.S.) 161 and Executive District Officer (Education) Rawalpindi v. Muhammad Younas 2007 SCMR 1835 ref.

Secretary, M/o Finance and another v. Kazim Raza 2008 PLC (C.S.) 877; Province of Punjab through Secretary Agriculture Government of Punjab and others v. Zulfiqar Ali 2006 SCMR 678 and Secretary to Government of N.-W.F.P. v. Sadullah Khan 1996 SCMR 413 ref.

Faisal Zaman Khan, Additional Advocate-General and Nizar Ahmed Abbasi, Departmental Representative for Petitioners.

Nemo for Respondents.

Date of hearing: 26th May, 2011.

SCMR 2011 SUPREME COURT 1584 #

2010 SCMR 1584

[Supreme Court of Pakistan]

Before Sardar Muhammad Raza Khan and Anwar Zaheer Jamali, JJ

AMANULLAH SHAH---Petitioner

Versus

SECRETARY, AGRICULTURE DEPARTMENT, GOVERNMENT OF SINDH and others---Respondents

C.P.L.A. No.339-K of 2009, decided on 20th August, 2009.

(On appeal from judgment of Sindh Service Tribunal Karachi, dated 27-2-2009 passed in Appeal No. 14 of 2008).

Sindh Civil Servants Act (XIV of 1973)---

----S. 8(4)---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1975, R. 10(1)---Seniority---Unit Supervisor (BPS-11) in Agriculture Engineering Wing of Agriculture Department---Appointment of petitioner (diploma-holder) in BPS-11 regularized on 26-11-1989---Appointment of respondents (Degree holders) in same grade and pay scale in September 1993---Preparation of combined seniority list on yearly basis of all employees in BPS-11 including Diploma-holder Supervisors and Graduate Supervisor showing names of petitioner and respondents according to their respective seniority--Issuance of Notification dated, 11-8-2000 providing separate quota for promotion to post of Assistant Agriculture Engineer in BPS-17 amongst Graduate Supervisors and Diploma-holder Supervisors---Obtaining of Bachelor Degree by petitioner in year 2004---First and second segregated list of seniority of Graduate Supervisors in BPS-11 prepared on 1-1-2006 and 1-1-2007 respectively showing name of petitioner at Serial No.3 not challenged by any one---Revised list of seniority prepared on 17-9-2007 placing name of petitioner at Serial No.13 below the name of respondents instead of Serial No.3 as mentioned in earlier seniority list dated 1-1-2007---Validity----Notification dated, 11-8-2000 issued in terms of R. 3(2) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 was meant for determining quota for promotion to posts in BPS-17 and was not meant to determine or affect inter se seniority of Unit Supervisors, which would be computed from date of their regular appointment as envisaged under S. 8(4) of Sindh Civil Servants Act, 1973 and R. 10(1) of Sindh Civil Servants, (Appointment, Promotion and Transfer) Rules, 1975---Statutory provision regarding seniority would have overriding effect on such Notification to protect seniority of petitioner---Petitioner had obtained Bachelor Degree much before preparation of first segregated list of seniority of Graduate Supervisors and Diploma-holder Supervisors---Petitioner would be entitled for promotion to a higher post from date of his regular appointment---Relief of seniority asked for by petitioner against respondents was granted in circumstances.

Ansari Abdul Latif, Advocate Supreme Court and Mazhar Ali B. Chohan Advocate-on-Record for Petitioner.

Yousaf Leghari Advocate-General, Sindh, Syed Farid Ali, S.O. and Sadar-ud-Din, A.O. for Respondents.

Faiz Muhanimad Rind Respondent No.6 in person.

Date of hearing; 20th August 2009.

SCMR 2011 SUPREME COURT 1591 #

2011 SCMR 1591

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Khilji Arif Hussain, JJ

MUHAMMAD ARIF and others---Petitioners

Versus

DISTRICT AND SESSIONS JUDGE, SIALKOT and others---Respondents

C.P. No. 695-L of 2011, decided on 17th June, 2011.

(On appeal against the judgment dated 28-3-2011 passed by Lahore High Court, Lahore in W.P. No. 6370 of 2011).

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 2(d). & Sched. Item No.8 (Dowery)---"Party"---Suit for recovery of dowery articles-Contention that wife was competent to file such suit only against her husband and not against the father, mother and brother of her husband,, was baseless---Provisions of West Pakistan Family Courts Act, 1964 and its Schedule in item No.8 contains "dowery.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 2(d)---"Party"---Definition---Scope---Definition as given in S.2(d) of West Pakistan Family Courts Act, 1964 has two parts i.e. (a) any person whose presence as such is considered necessary for the proper decision of the dispute and (b) any person whom Family Court adds as "party" to such dispute--Definition of word "party" is though not very different from the one obtaining under C.P.C., yet it is comparatively more liberal and extensive than the proverbial "necessary or proper party" of a civil suit--Principles elucidated.

The term "party" has been defined in Section 2 (d) of the Family Courts Act, 1964.

This definition has two parts which are serialized as (a) and (b).

(a) any person whose presence as such is considered necessary for the proper decision of the dispute.

AND

(b) any person whom the Family Court adds as a party to such dispute.

The nature of family disputes and jurisdiction of the family court is special as well as peculiar. The West Pakistan Family Courts Act 1964 was therefore legislated "to make provisions for the establishment of Family Courts for the expeditious settlement and disposal of the disputes relating to marriage and family' affairs and for matters connected therewith". It was in this perspective that the definition of the term 'party' was specifically codified in section 2 (d) in the Act. This definition is though not very different from the one obtaining under C.P.C. yet it is comparatively more liberal and extensive than the proverbial 'necessary or proper party' of a civil suit.

In West Pakistan Family Courts Act, 1964 the term 'party' has been defined in the contextual necessity of "proper decision of the dispute"; the requirements of which determine its meaning and scope. In addition to the 'necessary' or 'proper' parties as in a civil suit, other persons "considered necessary" can be impleaded as parties in the family suit. Part (a) gives the deciding choice to a plaintiff to implead "any person whose presence as such is 'considered necessary for a proper decision of the dispute". The words are clear and need no interpretation. Part (b) relates to Family Court's discretion whereby in the exercise of its powers "a person whole the Family Court adds as a party to such dispute". The powers are akin to the C.P.C. powers under Rule 10 of Order I, C.P.C. but without its technical or restrictive constraints. The power of the Family Court is not however absolute or without limitations. It is controlled by the word 'such dispute'; outside which or unconnected with which or unrelated thereto, no person can be added by the Fancily Court.

The definition of the 'party' in the Act is absolutely clear that a family suit cannot be restricted inter se the spouses only i.e. one plaintiff against one defendant when others are considered necessary for proper decision of the dispute or require addition to such dispute. A family suit is not a sparring match in a wrestling ring where one wins and the other loses or gives up on injury. The Act does not relegate a family suit to a merciless war to bring defeat on one and victory on the other in the judicial battle field. The Act instead visualizes attainment of a social and family harmony by sparing the spouses humility of an outright defeat or loss and the life long acrimony between them for generations. The Family Court is required by law to use the mandatory pre and post trial reconciliation provisions meaningfully and purposively and to endeavour achievement of settlement/resolution/decision of the dispute(s) between die spouses in a manner as to enable them to pursue a peaceful and productive post-dispute life either matrimonially together or otherwise as former spouses but without wrangling on the children or other issues.

Such a result can only be achieved if other persons who for some credible reason are considered necessary or proper or relevant or related to the dispute and its decision are also parties in the suit. The clear examples are the suits for the recovery of dowery items, dower property or personal property/belongings (of wife) alleged to be in the possession or use of persons other than the husband or wife. Such persons will per force need impleadment or addition as parties for a comprehensive, final, effective and proper decision of the dispute(s) and enforcement of the decree(s). Similarly in the matter of custody of minor children, persons having custody of the minors have to be parties to the family suit. Non-impleadment of such persons may result in the frustration of proper 'adjudication of the dispute by the Family Court which also enjoys the inherent power to delete or strike out any party; un-necessary or improper or unconnected to the cause or the dispute and the suit.

Another question is should part (a) and part (b) of the definition 'party' be read in conjunction because of the word 'AND' between them or should 'and' be read disjunctively as 'or'.

When the sense so requires 'and' may be read as 'or', and 'or' read as 'and' "in ordinary use the word "OR" is disjunctive while word 'AND' is conjunctive. However, the word 'or' and the word 'and' are often used interchangeably. As a result of this common and careless use of the two words in legislation, there are occasions when the court, through construction, may change one to the other. This cannot be done it the statutes' meaning is clear, or it' the alteration operates to change the meaning of the law. It is proper only in order to more accurately express, or to carry out the obvious intent of the legislature, when the statute itself furnishes cogent proof of the error of the legislature, and especially where it will avoid absurd or impossible consequences, or operate to harmonize the statute and give effect to all of its provisions to carry out the intention of the legislation it may be necessary to read "and" as "or" and vice versa.

Two parts (a) and (b) of the definition 'party' though look interconnected by word 'and' yet analysis of their respective scopes speak of their independence. Because each of these two parts comprise of self- contained provisions which are complete in all respects. Also that each part begins with the words "any person", which grammatically provide a clear demarcating line between the two. As such Part (a) and Part (b) are disjunctive in scope. Word "and between the two parts is to be read as "or". The conjunctive reading of (a) and (b) will lead to unreasonable difficulties that may defeat the legislative meaning flowing from the scheme of the West Pakistan Family Courts Act, 1964; intent of which appears to be otherwise than to conjunct part (a) and (b) in terms of the definition of 'party'. Reading (a) and (b) conjunctively will also restrict the scope of the definition. It will cause unnecessary complications and delays in the trial. A person 'considered necessary' and thus impleaded by the plaintiff, will need Court's permission or order to be added as a party, though such permission or order is not required under the statute. Further that such an interpretation will render part (a) as redundant and ineffective; intent for which cannot be attributed to the legislature.

It will also keep the related and necessary persons out of the trial thereby preventing effective and binding adjudication. Such restrictive reading will defeat the purpose, meaning, intent, subject matter and context of the statute and will lead to unjust, oppressive and absurd consequences destructive to the 'dispute resolution' or dispute settlement' ordispute adjudication'.

Crawford's "Statutory Construction; Interpretation of Statutes" and Maxwell on the Interpretation of Statutes ref.

----O. I, Rr. 1, 3, 6, 7, 10 & 13---Parties to suit---Object of O.I, Rr. 1 & 3, C.P.C.-"Necessary party" and "proper party "---Concept---Objection to joinder, misjoinder or non joinder must be taken at the earliest, failing which as per O. I, R.13, C.P. C., such objection will be deemed to have been waived---Principles.

Rules 1 and 3 of Order I, C.P.C. are enabling and permissive rules admitting of other amplifications as well. Joinder of several persons as co-plaintiffs or co-defendants in a suit under C.P.C. rests upon the right of relief arising out of the same act or transaction or series of acts or transactions involving common questions of law and facts. The general principle of law is that where persons are jointly entitled or liable, they must be made parties to the suit as otherwise the suit may not result into an effective, enforceable or binding decree. It is not necessary that each plaintiff or defendant must be equally interested in the entire subject matter of the suit. The object of Rules 1 and 3 of C.P.C. is to avoid multiplicity of suits. To attain this object, the Court also possesses the power to add defendants (Rules 6, 7 or 10) irrespective of their limited interest in the subject matter of the suit (Rule 5). So much so that a plaintiff in doubt as to the persons against whom he has or could have the right of relief; wholly or partially, been allowed the right under Rule 7 to implead/join them as defendants "in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties". The object of the law is that even a doubt should not be permitted to hinder an effective adjudication of a trial. Similarly Rule 10 empowers the Court to substitute or add a party in the suit or to strike out an improperly joined plaintiff/defendant. The rule therein is that "the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit, be added". This is to obtain complete and effective decision of all the questions/issues arising from a suit and importantly to prevent separate actions on the same cause or causes. A party who ought to have been joined is a 'necessary party' and one whose presence is necessary for the adjudication of all issues and matters involved in the suit is a 'proper party'. In the absence of a 'necessary party', a suit cannot be proceeded with and a final and binding decree cannot be passed. To pass an effective and binding decree, all questions/issues/matters arising from the suit will need to be adjudicated upon; for which presence of certain other persons before the Court is essential. They have been classed' as the proper parties; whose interest in or against the relief or the subject matter of the suit may be marginal, nominal, limited or none. The presence of proper parties before the Court is also to prevent frustration or embarrassment of the suit by containing investigations/inquiries on the same controversies in more than one trial. An objection to their joinder, mis-joinder or non-joinder must be taken at the earliest. Failing which as per Rule 13 thereof such objection will be deemed to have been waived.

(d) Interpretation of statutes---

----Use of words "and" and "or"---Principles.

When the sense so requires 'and' may be read as 'or', and 'or' read as 'and'. "In ordinary use the word "OR" is disjunctive while word 'AND' is conjunctive. However, the word 'or' and the word 'and' are often used interchangeably. As a result of this common and careless use of the two words in legislation, there are occasions when the court, through construction, may change one to the other. This cannot be done if the statutes' meaning is clear, or if the alteration operates to change the meaning of the law. It is proper only in order to more accurately express, or to carry out the obvious intent of the legislature, when the statute itself furnishes cogent proof of the error of the legislature, and especially where it will avoid absurd or impossible consequences, or operate to harmonize the statute and give effect to all of its provisions.

To carry out the intention of the legislature it may be necessary to read "and" as "or" and vice versa.

Crawford's "Statutory Construction; Interpretation of Statutes" ref.

(e) Interpretation of statutes---

----Intention of legislature---To carry out the intention of legislature it may be necessary to read "and" as "or" and vice versa.

Maxwell on the Interpretation of Statutes ref.

(f) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 2(d) & Sched. Item No. 8---Constitution of Pakistan, Art .185(3)---Suit for recovery of dowery articles by wife---Impleadment of father, brother and mother of husband as party by wife---Petitioners (father, brother and mother) never objected to their impleadment in their written statement before the Family Court or in their appeal before the first appellate court or in the constitutional petition before the High Court---Question of jurisdiction of Family Court was also not raised before any of the courts and petitioners fully participated in the suit trial, filed their appeal and then a constitutional petition in the High Court---Petitioners, in circumstances, were debarred from claiming such a ground (objection to the impleadment) for the first time before the Supreme Court-Petition for leave to appeal was dismissed.

M. Iftikhar Shah Advocate Supreme Court for Petitioners.

Malik Amjad Pervaiz, Senior Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Respondent No.2.

Date of hearing: 17th June, 2011.

SCMR 2011 SUPREME COURT 1602 #

2011 SCMR 1602

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez and Amir Hani Muslim, JJ

PUNJAB PUBLIC SERVICE COMMISSION and another---Appellants

Versus

Mst. AISHA NAWAZ and others---Respondents

Civil Appeals Nos.277 of 2011 and C.M.A. No.1604-L of 2011, decided on 23rd June, 2011.

(On appeal from judgment dated 6-7-2010 passed by the Lahore High Court, Lahore, I.C.A. No.3 of 2010).

(a) Punjab Public Service Commission Ordinance (II of 1978)---

----S. 7---Constitution of Pakistan, Art.185(3)---Appointment on posts reserved for physically disabled persons---Criteria---Supreme Court emphasized Public Service Commission to formulate rules and policy for considering degree of disability while providing opportunity to such persons against different posts.

(b) Constitution of Pakistan---

----Arts. 185(3) & 199---Law Reforms Ordinance (XII of 1972), S.3---Petition for leave to appeal---Plea raised before Supreme Court by respondent neither raised in constitutional petition nor in Intra-Court Appeal---Validity---Supreme Court declined to allow respondent's counsel to raise such plea.

----Interference with---Scope---Policy of Government could not be interfered with without showing same to be violative of Fundamental Rights.

Ch. Khadim Hussain Qaiser, Additional Advocate-General, M. Aslam Kamboh, Secretary, Schools, Muhammad Ali Bhatti, Director, PPSC and Muhammad Farooq, Deputy Director, PSC for Appellants.

Tariq Zulfiqar, Advocate Supreme Court for Respondent No. l.

Ms. Shireen Imran, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondent No.3.

Respondents Nos.2, 4-6 Ex parte.

Date of hearing; 23rd June, 2011.

SCMR 2011 SUPREME COURT 1606 #

2011 SCMR 1606

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, CJ., Khilji Arif Hussain and Amir Hani Muslim, JJ

MUHAMMAD ABBASI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No. 278 of 2011, decided on 13th July, 2011.

(On appeal from the judgment dated 21-4-2011 passed by the Islamabad High Court, Islamabad in Criminal Miscellaneous No. 97-B of 2011).

(a) Criminal Procedure Code (V of 1898)---

----S. 497(2)---Bail---Further inquiry, principle of---Applicability---Mere possibility of further inquiry, which exists almost in every criminal case, is of no ground for treating the matter as one under S.497(2), Cr.P. C. ---Not possible to release the accused notwithstanding the fact that he is involved in heinous criminal case, particularly in the case where eye-witnesses have duly implicated him with the commission of offence.

Asmatullah Khan v. Bazi Khan PLD 1988 SC 621; Mst. Parveen Akhtar v. The State 2002 SCMR 1886 and The State through D.-G. ANF v. Abdul Ghani 2010 SCMR 61 rel.

(b) Criminal Procedure Code (V of 1898)---

----Ss.161 & 497---Penal Code (XLV of 1860), S. 302---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Bail, refusal of-Assessment of evidence---Scope---Two versions---Accused contended that. there were two versions of the incident, which had made the case one of further inquiry---Validity---While deciding bail application of an accused, courts should mainly rely upon material brought on record by prosecution including F.I.R., statement of complainant under S.161, Cr.P.C. as well as incriminating/circumstantial evidence etc. for tentative assessment against accused to assess whether accused was involved in commission of offence or not---There were two versions regarding incident and truthfulness of the same was to be decided by Trial Court but in view of the statements of eye-witnesses prima facie involvement of accused could not be overruled---Supreme, Court refrained from embarking upon the fact in detail, lest it might cause prejudice to the case of either parties, accused was not entitled to be released on bail--- Leave to appeal was refused.

----S. 497---Bail---Opinion of investigating officer---Scope---Opinion of investigating officer is not binding on the court, which has to formulate its opinion independently after examining the record of the case.

Manzoor v. The State PLD 1972 SC 81; Mst. Qudrat Bibi v. Muhammad Iqbal 2003 SCMR 68; Naseem Malik v. The State 2004 SCMR 283; Mudassar Altaf v. The State 2010 SCMR 1861 and Hakeem Mumtaz Ahmad v. The State PLD 2002 SC 590 rel.

(d) Criminal Procedure Code (V of 1898)---

----S. 493---Prosecution of cases---Islamabad High Court---Scope---After establishment of Islamabad High Court, prosecution agency of Province of Punjab was not responsible to conduct cases pertaining to Islamabad Territory, except when they were asked to do so---Supreme Court directed the authorities to appoint prosecutor under S. 493, Cr. P. C.

Syed Zafar Ali Shah, Senior Advocate Supreme Court for Petitioner.

Raja Aleem Abbasi, D.A.-G. for the State.

Muhammad Ilyas Siddiqui, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for the Complainant.

Date of hearing: 13th July, 2011.

SCMR 2011 SUPREME COURT 1612 #

2011 SCMR 1612

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ghulam Rabbani, JJ

MUHAMMAD MOOS A and others---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No.33-K of 2011, decided on 13th June, 2011.

(On appeal from order of High Court of Sindh, Karachi dated 16-3-2011, passed in Criminal Bail Application No. 730 of 2009).

Criminal Procedure Code (V of 1898)---

----S. 498---Pre-arrest bail, grant of---Affidavits of injured persons-Mala fide---All other co-accused nominated in the crime, except accused were admitted to bail either by Trial Court or by High Court---Complainant and three injured prosecution witnesses, in their depositions, did not support prosecution story about involvement of accused in commission of crime---Effect---Possibility of mala fide involvement of accused persons in commission of crime could not be ruled out---Pre-arrest bail was allowed.

Salahuddin Panhwar, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioners.

Salem Akhtar, Additional Prosecutor-General for the State.

Date of hearing: 13th June, 2011.

SCMR 2011 SUPREME COURT 1613 #

2011 SCMR 1613

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Mian Saqib Nisar, JJ

DISTRICT COORDINATION OFFICER and others---Petitioners

Versus

ZAHEER ALAM and another---Respondents

Civil Petitions Nos.1956-L and 1957-L of 2010, decided on 24th June, 2011.

(Against the judgment, dated 21-7-2010 passed by Punjab Service Tribunal, Lahore in Appeals Nos.2085 of 2008 and 2836 of 2009).

Civil service---

----Increments on acquisition of higher qualification, grant of---Secondary School Teachers in Education Department---Refusal of department to give increments to such Teachers for not having got Master's Degree in discipline of Education---Service Tribunal accepted teachers' appeal--Validity---Notification dated 25-8-1983 showed that besides M.Ed., six advance increments would be available to those having improved their qualifications in "master's degree in any discipline"---Supreme Court refused to grant leave to appeal in circumstances.

Jawwad Hassan, Additional Advocate-General, Punjab and Nizar Ahmad, Law Officer, Education Department, Rawalpindi for Petitioners (in both cases).

Respondents in Person (in both cases).

Date of hearing: 24th June, 2011.

SCMR 2011 SUPREME COURT 1614 #

2011 SCMR 1614

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

SHAHID IMRAN---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 443-L of 2011, decided on 8th July, 2011.

(On appeal from the order dated 15-6-2011 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 2222-CB of 2011).

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss. 406 & 506---Constitution of Pakistan, Art. 185(3)---Criminal breach of trust and criminal intimidation---Pre-arrest bail, grant of---Currency notes, recovery of---Grant and cancellation of bail---Principles---Filing of challan---Pre-arrest bail granted to accused by Sessions Court was cancelled by High Court---Validity---Considerations for grant of bail and those for its cancellation were entirely different---In the present case, no allegation was levelled against accused regarding any misuse or abuse of concession of bail by him and even complainant had not been able to level any such allegation against accused before Supreme Court---High Court did not appreciate that investigation of the case had already been finalized and challan was submitted before Trial Court and at such a stage no useful purpose would be served by cancelling bail of accused---Bail should not be cancelled merely for wreaking vengeance' of the complainant party---No proof was available on the record to even. prima facie establish that complainant had ever given any sum of money to accused and even otherwise any such money given to accused, if at all, was not recognizable with reference to denomination of the currency notes or their numbers and, thus, the money likely to be recovered from the custody of accused would never be connected with the money allegedly paid by complainant to accused---Supreme Court declined to deprive the accused of his liberty for recovery of any amount of money which would stand connected with the amount in issue and where such recovery might remain legally inconsequential---Order passed by High Court was set aside by Supreme Court and pre-arrest bail was allowed.

State of Gujarat v. Jaswantlal Nathalal AIR 1968 SC 700; Punjab National Bank and others v. Surendra Prasad Sinha 1994 PSC (Crl) 768; Shaukat Ali Sagar v. Station House Officer, Police Station Batala Colony, Faisalabad and 5 others 2006 PCr.LJ 1900; Ghulam Ali v. Javid and another 1989 PCr.LJ 507; Nga Po Seik v. Emperor 1917 Indian Cases 824 and Kanai Lal Dutta v. The State (AIR 1951 Cal. 206 ref.

Rao Tajammal Abbas, Advocate Supreme Court with the Petitioner in person.

Asjad Javaid Ghural, Additional Prosecutor-General, Punjab for the State.

Complainant in person.

Date of hearing: 8th July, 2011.

SCMR 2011 SUPREME COURT 1618 #

2011 SCMR 1618

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Mian Saqib Nisar, JJ

DIVISIONAL FOREST OFFICER, KASUR and another---Petitioners

Versus

ZAHID ALI---Respondent

Civil Petition No.1896-L of 2010, decided on 23rd June, 2011.

(On appeal from the judgment dated 19-7-2010 of the Punjab Service Tribunal, Lahore passed in Appeal No.725 of 2010).

Punjab Employees' Efficiency, Discipline and Accountability Act (XII of 2006)---

----Ss. 4 & 5---Punjab Service Tribunals Act (IX of 1974), S. 4---Constitution of Pakistan, Art. 212(3)-Recovery of Rs. 1,08,740 imposed as penalty---Dispensing with inquiry---Waiver of such penalty by Service Tribunal---Validity---Keeping in view nature of allegations, Authority had not conducted regular enquiry---Authority had not given any plausible reason for waiving off inquiry---Supreme Court set aside impugned judgment while observing that the Authority, if desired, could hold de novo inquiry against appellant within specified time.

Ahmed Rauf, Additional Advocate-General for Petitioners.

Respondent in Person.

Date of hearing: 23rd June, 2011.

SCMR 2011 SUPREME COURT 1619 #

2011 SCMR 1619

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

SHAHID FAROOQ---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 211-L of 2011, decided 6th June, 2011.

(On appeal from the judgment dated 24-2-2011 passed by Lahore High Court, Lahore in Criminal Miscellaneous No. 842-B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/364/324/148/149---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, kidnapping, attempt to Qatl-e-amd and rioting armed with deadly weapon---Bail, grant of---Rule of consistency---Applicability---Accused sought bail on the ground that his co-accused had already been released on bail---Validity---Accused was specifically named by one of the victims of assault who succumbed to injuries and died later---Case of accused was distinguishable from that of the one who had been allowed bail earlier---Trial had commenced and nine witnesses were examined---Supreme Court declined to grant bail to accused---Leave to appeal was refused.

Malik Saeed Hussain, Senior Advocate Supreme Court for Petitioner.

Ch. Z.A. Farooq, A.P.-G. for the State.

Ali Abid, Advocate Supreme Court, S.M. Shah, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Respondents.

Date of hearing: 6th June, 2011.

SCMR 2011 SUPREME COURT 1621 #

2011 SCMR 1621

[Supreme Court of Pakistan]

Present: Javed Iqbal, Mian Shakirullah Jan, Tassaduq Hussain Jillani and Khilji Arif Hussain, JJ

Messrs AL-RAHAM TRAVELS AND TOURS (PVT.) LTD. and others---Petitioners

Versus

MINISTRY OF RELIGIOUS AFFAIRS, HAJJ, ZAKAT AND USHR through Secretary and others---Respondents

Civil Petition No. 923 and CMAs Nos. 2509, 2535, 2536, 2543, 2585 to 2588 and 2593 of 2011, Civil Petition No. 933 and CMA No. 2544 of 2011, Civil Petition No. 937 and CMA Nos. 2515 to 2519, 2545, 2548, 2579, 2582 to 2584, 2594 to 2598 of 2011, Civil Petition No. 950 and CMA No. 2547 of 2011 and Civil Petitions Nos. 973 to 976 of 2011, decided on 25th July, 2011.

(On appeal from the judgment dated 6-6-2011 of Lahore High Court, Lahore passed in Writ Petition No. 8617 of 2011, etc.).

(a) Constitution of Pakistan---

----Arts. 4, 18 & 25---Right of trade, business and profession---Term "citizens" as mentioned in Art. 25 of the Constitution---Hajj Policy, 2011---Scope---Respondent companies/petitioners before High Court were Hajj Group Organizers/tour operators and were aggrieved of Hajj Policy-2011, formulated by Federal Government---High Court allowed the petitions and declared restrictions imposed on new enrolment for Hajj Policy, 2011 to be in conflict with the provisions of Arts.4, 18 and 25 of the Constitution and directed the authorities to receive applications from respondent companies and all those persons who intended to get themselves enrolled as Hajj Group Organizers, if they had otherwise fulfilled the criteria laid down in Hajj Policy 2011---Plea raised by authorities was that Hajj Group Organizers were supposed to submit passports of Hujjaj by 17-7-2011, and any interference in the process already undertaken by registered Hajj Group Organizers within the time frame given to them by the host country would seriously prejudice the interests of innocent pilgrims who were to perform their Hajj through Hajj Group Organizers---Authorities further raised the plea that petitioners before High Court were corporate bodies and do not come under the definition of "citizens" as provided in Art. 25 of the Constitution---Validity---All tour operators were asked by Government if they had performed their function as sole proprietorship or not to constitute a limited company to enroll them as Hajj Group Organizers and thereafter Government would be allocating quota to them--- Shareholders of respondent companies were forced/compelled to establish limited companies to meet the criteria laid down under the Hajj Policy, 2011---All shareholders of respondent companies were citizens of Pakistan and. in some cases they were members of the same family---Authority could not deprive the fundamental rights of the citizens by making a policy thereby compelling them to form firstly a limited company and then to non-suit on the ground that as the company was not a `citizen', thus could not seek protection---Supreme Court set aside the judgment passed by High Court and noted it with concern that every year such litigation had brought to the courts---Supreme Court expected from the authorities: that in future the Government would announce Hajj Policy well in time and process the applications submitted by tour operators pending before the Ministry, within a reasonable period of time, after providing proper opportunity, if needed be, keeping in view the guidelines given by the host country---Appeal was allowed.

Asad Khan Mengal and others v. Muhammad Afzal Shouq and others 2010 PLC (CS) 532; Federation of Pakistan v. Muhammad Sadiq PLD 2007 SC 133; Chairman, Joint Administration Committee v. Raza Hassan 1999 SCMR 965; Abdul Sattar Chughtai Malik v. Pakistan Bar Council PLD 2007 Lah. 170; Delhi Cloth and Gen. Mills v. Chief Commr. AIR 1964 Pun. 492; Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44; Golden Falcon Travel Services (Pvt.) Ltd. v. Ministry of Religious Affairs PLD 2007 Lah. 550; Ahmad Hassan v. Government of Punjab 2005 SCMR 186; Zafar-ul-Ahsan v. Republic of Pakistan PLD 1960 SC (Pak) 113; Hazara (Hill Tract) Improvement Trust v. Qaisara Elahi 2005 SCMR 678 and Harakchand v. Union of India AIR 1970 SC 1453 ref.

"Constitutional Law of India" authored by H.M. Seervai; Barium Chemicals Ltd. v. Company Law Board AIR 1967 SC 295; A.I. Works v. Chief Controller, Imports AIR 1974 SC 1539 and B.C. & Co. v. Union of India AIR 1973 SC 106 rel.

(b) Constitution of Pakistan---

----Part-II, Chap-I (Arts. 8 to 28)---Fundamental and human rights---Scope---Human rights cannot be confined only to basic civil rights and liberties, including political liberty because a man cannot think for individual and collective development, when he cannot meet the basic necessities of life such as minimum food, clothing and housing---Rights to those basic necessities of life are basically and fundamentally economic rights---Both basic civil rights and liberties and those economic rights must go hand in hand and are inseparable and indivisible.

----Principles---Constitution is a living organism and has to be interpreted to keep alive the traditions of past blended in the happening of present and keeping an eye on the' future as well---Constitution must be interpreted keeping in view the entire canvas of national fabric, be it political, social, economic or religious---Constitution is to be interpreted liberally and saved from cosmetic circumscription and construction---Constitution is not a document of past or present, so it is to be interpreted in a manner to meet the changing conditions of socioreligio and economic dynamics of the State.

(d) Interpretation of statutes---

----Words used in statute---Scope---Where a word of wider meaning is included in a string of genus describing terms of narrower meaning, the genus may operate to restrict the meaning of wider word so as to keep it within the genus.

Farooq Ahmad Khan Leghari v. Federation of Pakistan PLD 1999 SC 57 rel.

(e) Constitution of Pakistan---

----Art. 18---Right of trade, business and profession---Government, monopoly of---Scope---Hajj Group Organizers/tour operators were aggrieved of Hajj Policy, 2011, formulated by Federal Government---Validity---Exclusion provided in Art. 18(c) of the Constitution was only to the extent of trade, business, industry or service controlled by Federal Government or a Provincial Government or by a corporation, controlled by any such Government.

Vithal Yeshwant v. Shikandarkhan AIR 1963 SC 385 and Farooq Ahmad Khan Leghari v. Federation of Pakistan PLD 1999 SC 57 rel.

(f) Constitution of Pakistan---

----Art. 199---Constitutional petition before High Court---Maintainability---Policy matters---Scope---If policy is in conflict with any provision of law or is violative of fundamental rights of a citizen, the same can be called in question before High Court in its constitutional jurisdiction.

Watan Party v. Federation of Pakistan PLD 2006 SC 697 and Shaheen Cotton Mills v. Federation of Pakistan PLD 2011 Lah. 120 rel.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners (in C.P. No.923 of 2011).

Ahmar Bilal Sooti, Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record for Petitioners (in C.P. No. 933 of 2011).

Hamid Khan, Senior Advocate Supreme Court for Petitioners (in Miscellaneous Applications).

Dr. Babar Awan, Senior Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record, Ch. Akhtar Ali, Advocate-on-Record, Mehmood A. Sheikh, Advocate-on-Record and Syed Safdar Hussain, Advocate-on-Record for Petitioners (in C.P. No. 937 of 2011).

Ch. Aitezaz Ahsan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in C.P. No. 950 of 2011).

Nemo for Petitioners (in C.Ps. Nos. 973, 974 and 975 of 2011).

M. Ikram Chaudhry, Senior Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record for Petitioners (in C.P. No. 976 of 2011).

Petitioners in person (in CMA No. 2509 of 2011).

Qazi Shehryar Iqbal, Advocate Supreme Court and Ch. AkhtarAli, Advocate-on-Record for Petitioners (in CMAs Nos. 2515 to 2519 of 2011).

Mian M. Hussain Chotya, Advocate Supreme Court for Petitioners (in CMAs Nos. 2535, 2536, 2586, 2587 and 2588 of 2011).

Hamid Khan, Senior Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record for Petitioners (in CMAs Nos. 2544, 2545,2547, 2584, 2585, 2598 and 2593 of 2011).

Nasir Ahmed Bhutta, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners (in CMA No. 2548 of 2011).

Petitioners in person (in CMA No. 2579 of 2011).

I.H. Shah, Advocate Supreme Court for Petitioners (in CMA No. 2582 of 2011).

Qazi Shehryar Iqbal, Advocate Supreme Court for Petitioners (in CMAs Nos. 2583, 2596 and 2597 of 2011).

Petitioners in person (in CMAs Nos. 2594 and 2595 of 2011).

Azhar Siddiqui, Advocate Supreme Court for Petitioners (in CMAs Nos. 2606 to 2625 of 2011).

Mehmood A. Sheikh, Advocate-on-Record for Petitioners (in C.P. No. 937 of 2011).

Muhammad Azhar Siddiqui, Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record for Respondents (in C.P. No. 923 of 2011).

Ahmed Owais, Advocate Supreme Court for Respondents (in C.P. No. 937 of 2011).

Nemo for Respondents (in C.Ps. Nos. 973, 974, 975 and 976 of 2011).

Date of hearing: 7th July, 2011.

SCMR 2011 SUPREME COURT 1644 #

2011 SCMR 1644

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

Syed ARSHAD ALI SHAH BUKHARI---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 333-L of 2011, decided on 26th May, 2011.

(On appeal from the order dated 10-5-2011 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 4920-B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/392/395---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Attempt to commit Qatl-e-amd, robbery and dacoity---Bail, grant of---Case of further inquiry---"Robbery" and "Dacoity"---Distinguished---Innocence of co-accused---Stolen property, non-recovery of---Four out of eight accused persons nominated in F.I.R. were declared by investigating agency to be innocent, reducing number of culprits to less than five, thus instead of S. 395, P.P. C., only S. 392, P.P. C. could be attracted---Even provision of S. 392, P. P. C. did not find support from the circumstances as it had been alleged in F.I.R. that some mobile phone sets were snatched away by culprits from two members of police party but during investigation no such mobile telephone sets had been recovered---No independent proof of any violence against any member of police force endangering life or property of any member of police force was available---Prima facie it was doubtful at bail stage as to whether provisions of S.6 read with S. 7 of Anti-Terrorism Act, 1997, were attracted or not---Bail was allowed.

Qamar-ur-Zaman Qureshi, Advocate Supreme Court for Petitioner.

Ch. Zubair Ahmad Farooq, Additional Prosecutor-General, Punjab with M. Safdar, S.-I. for the State.

Date of hearing: 26th May, 2011.

SCMR 2011 SUPREME COURT 1646 #

2011 SCMR 1646

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

MUHAMMAD ISHAQ---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 434-L of 2009, decided on 30th June, 2011.

(Against the judgment dated 6-6-2011 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 5883-B of 2011).

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 498---Penal Code (XLV of 1860), Ss. 337-A(i) & 452---Shajah-i-Khafifah and trespassing---Pre-arrest bail, grant of---Case of further inquiry-Conflicting opinion---Accused was found by investigating officer to be involved in trespassing but Deputy Superintendent of Police did not agree with the finding of Investigating officer---Effect---Sole injury attributed to accused in terms of F.I.R. was not only Shajah-i-Khafifah making the offence bailable but even if Investigating officer found accused empty handed and such finding had not been varied, the question of application of S. 452, P.P.C. would remain a moot point between two officers i.e. Investigating officer and Deputy Superintendent of Police---Findings of Investigating officer and the fact that sole injury attributed, attracted only bailable offence, the possibility of false involvement of accused could not be ruled out---Prearrest bail was allowed.

Sh. Irfan Akram, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Petitioner.

Asjad Javaid Ghural, Additional Prosecutor-General, Punjab along with Ahmad Iqbal, S.-I. for the State.

Malik Mushtaq Ahmad, Advocate Supreme Court and Salem Khan Cheechi, Advocate Supreme Court for Respondent No.2.

Date of hearing: 30th June, 2011.

SCMR 2011 SUPREME COURT 1648 #

2011 SCMR 1648

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez and Ghulam Rabbani, JJ

ABDUL GHAFOOR and others---Petitioners

Versus

Mst. MARRIAM BIBI (deceased) through Legal Heirs and others---Respondents

Civil Petition No. 2280 of 2010, decided on 8th November, 2010.

(On appeal from the judgment dated 7-10-2010 passed by the Lahore High Court, Multan Bench in RFAs Nos. 1 and 46 of 2004).

(a) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 2---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Propositus of parties left behind in year 1946 land situated in two Districts "A" (his native District) and "B" (where he migrated and lived till death)---First inheritance mutation of deceased in District "A" attested in favour of all legal heirs---Second inheritance mutation of deceased in District "B" attested only in favour of defendant (his son) excluding plaintiffs (his widow and daughters)---Plea of defendant that inheritance of deceased was governed by Custom and not by Sharia Law---Validity---Nothing on record to show that Custom existed in native District "A", where inheritance of deceased was opened according to Sharia and plaintiffs were given their shares from estate of deceased---Had Custom been applicable to parties at time of death of deceased, then at both Districts inheritance would have opened accordingly---Defendant had excluded plaintiffs from inheritance not on the basis of Custom, but by way fraudulent means and showing them as non-existent----Application of two different laws at one time on estate of deceased would be against rule of consistency, thus, second mutation was hit by such rule---First inheritance mutation was still intact and had not been disputed by defendant or any body else---Copy of Riwaj-e-aam for year 1919-1920 relating to area of District "B" produced by defendant showed that daughters were also inheriting from estate of their predecessors---Suit was decreed by declaring second inheritance mutation as illegal and fraudulent.

(b) Specific Relief Act (1 of 1877)---

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts. 17(2), 79 & 117---Suit for declaration and permanent injunction---Plaintiffs being illiterate and pardanashin ladies alleged sale deed of their property in favour of defendant to be fraudulent---Proof---Burden to prove sale would lie on defendant---Defendant in evidence had neither produced original sale deed nor examined marginal witnesses thereof---Defendant had failed to prove execution of sale deed---Suit was decreed in circumstances.

----Art. 185(3)---Petition for leave to appeal---Ground not raised before High Court/Appellate Court---Effect---Such ground would have no force before Supreme Court.

Gul Zarin Kiyani, Senior Advocate Supreme Court and Muhammad Munir Paracha, Advocate Supreme Court for Petitioners.

G.N. Gohar, Advocate Supreme Court/Advocate-on-Record for Respondents.

Date of hearing: 8th November, 2010.

SCMR 2011 SUPREME COURT 1655 #

2011 SCMR 1655

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Mian Saqib Nisar, JJ

Mst. FIRDOUS BATOOL---Petitioner

Versus

'EXECUTIVE DISTRICT OFFICER and another---Respondents

Civil Petition No. 1992-L of 2010, decided on 22nd June, 2011.

(Against the judgment, dated 21-5-2010 "passed by Punjab Service Tribunal, Lahore in S.A. No.1668 of 2009).

Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006)---

----Ss. 4 & 5---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan, Art. 212(3)---Reduction in rank from post of Secondary School Teacher to Elementary School Teacher---Dispensing with regular enquiry---Dismissal of appeal by Service Tribunal---Validity---Nature of allegation levelled against appellant required recording of evidence---Supreme Court set aside impugned judgment while observing that Authority, if desired, could hold a fresh inquiry against appellant within specified time.

Mian Muhammad Nawaz, Advocate Supreme Court for Petitioner.

Zaka ur Rehman, Additional Advocate-General for Respondents.

Date of hearing: 22nd June, 2011.

SCMR 2011 SUPREME COURT 1657 #

2011 SCMR 1657

[Supreme Court of Pakistan]

Present: Tariq Parvez and Amir Hani Muslim, JJ

MUHAMMAD YOUNAS and others---Appellants

Versus

MUHAMMAD TUFAIL and others---Respondents

Civil Appeal No. 1258 of 2005, decided on 30th June, 2011.

(On appeal against the judgment dated 22-9-2005 passed by the Lahore High Court, Lahore in R.S.A. No. 69 of 2004).

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell property---Court, in law, cannot enlarge the scope of suit to give a finding in respect of another sale agreement executed between the other parties, who are stranger to the sale agreement sought to be enforced---Principles.

Shehzad Shaukat, Advocate Supreme Court for Appellants.

Gulzarin Kiani, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents No. 1 and 3(i - v, vii).

Ex parte for Respondent No. 2 (ii - v), 3 (vi), 4, 5 and 6.

Nemo for Respondent No. 2(i).

Date of hearing: 30th June, 2011.

SCMR 2011 SUPREME COURT 1663 #

2011 SCMR 1663

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Mian Saqib Nisar, JJ

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and another---Petitioners

Versus

MUHAMMAD ZAMAN---Respondent

Civil Petition No. 2047-L of 2010, decided on 21st June, 2011.

(On appeal from the judgment dated 13-7-2010 of the Punjab Service Tribunal, Lahore passed in Appeal No. 1341 of 2009).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Constitution of Pakistan, Art. 212(3)---Pro forma promotion after reinstatement in service, claim for---Dismissal from service for absence from duty for four (4) months and Fifteen (15) days--Reinstatement of appellant in service on compassionate grounds by competent authority while treating intervening period as leave without pay---Service Tribunal accepted appeal granting/such claim of appellant---Validity---Appellant had not placed on record any documentary proof to show that he remained absent due to sickness of his wife---Supreme Court set aside impugned judgment in circumstances.

Ghulam Rasool and others v. Government of Balochistan and others PLD 2002 SC 381 rel.

Shahid Mobeen, Additional A.-G., M. Saleem, DSP (Legal) CCPO Office, Lahore and Naseer Ahmed, DSP (Legal) I.-G.P. Office for Petitioner.

Respondent in person.

Date of hearing: 21st June, 2011.

SCMR 2011 SUPREME COURT 1665 #

2011 SCMR 1665

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tassaduq Hussain Jillani, Raja Fayyaz Ahmed and Asif Saeed Khan Khosa, JJ

HABIBULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 169 of 2004, decided on 8th February, 2011.

(On appeal from the judgment dated 24-7-2003 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 254 of 2003).

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10(3)---Zina---Proof---Conviction can be awarded on solitary statement of prosecutrix alone.

Ramzan Ali v. State PLD 1967 SC 545; Ashraf v. Crown PLD 1956 FC 86; Ghulam Sarwar v. State PLD 1984 SC.218; Haji Ahmed v. State 1975 SCMR 69; Shahid Malik v. State 1984 SCMR 908; Ehsan Begum v. State PLD 1983 FSC 204; M. Akram v. State PLD 1989 SC 742 and Shakeel v. State PLD 2010 SC 47 rel.

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10(3)---Penal Code (XLV of 1860), Ss. 354-A & 452---Anti-Terrorism Act (XXVII of 1997), S. 6(b)---Zina-bil-Jabar, assault or use of criminal force to woman and stripping her of her clothes and house trespass---Reappraisal of evidence---Solitary statement of prosecutrix---Marks of violence, absence of---Accused was convicted and sentenced by Trial Court for imprisonment for 20 years and the same was maintained by High Court---Contention of accused was that there were no marks of violence found on the body of prosecutrix, therefore, benefit of doubt should be extended to him---Validity---Veracity of prosecutrix's statement was the inherent merit of her statement because corroborative evidence alone could not be made a base to award conviction---Contention of accused was in oblivion of thy' fact that rape was proved on the basis of cogent and concrete evidence including medical evidence---Marks of violence were not essential to establish factum of Zina-bil-Jabar---Supreme Court after keeping defence version in juxtaposition, declined to take into consideration the same as it was baseless---Merely on the basis of a petty matter nobody would like to stigmatize her innocent daughter for her entire life which would have a substantial bearing on her future---Supreme Court declined to interfere in the conviction and sentence awarded to accused by the Courts below---Appeal was dismissed.

Ramzan Ali v. State PLD 1967 SC 545; Ashraf v. Crown PLD 1956 FC 86; Ghulam Sarwar v. State PLD 1984 SC 218; Haji Ahmed v. State 1975 SCMR 69 and Ashraf v. Crown PLD 1956 FC 86 rel.

Malik Ainul Haq, Advocate Supreme Court for Appellant.

Muhammad Aslam, Gumman, Advocate Supreme Court on behalf of KPK for the State.

Date of hearing: 8th February, 2011.

SCMR 2011 SUPREME COURT 1672 #

2011 SCMR 1672

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Khilji Arif Hussain, JJ

MUHAMMAD HANIF---Petitioner

Versus

COMMISSIONER OF WEALTH TAX and others---Respondents

C.P. No. 449-L of 2008, decided on 17th June, 2011.

(On appeal against the judgment dated 16-4-2008 passed by Lahore High Court, Lahore in W.P. No. 6120 of 2007).

Wealth Tax Act (XV of 1963)---

----S.17---Constitution of Pakistan, Art. 185(3)---Reopening of assessment---Leave to appeal was granted by Supreme Court to consider; whether High Court was justified to dismiss petition in limine; whether High Court had correctly applied the ratio settled in earlier judgment passed by Supreme Court; whether, once pending return filed on 30-10-2000, was disposed of on 24-5-2003, after repeal of Wealth Tax Act, 1963 could legally proceed to reopen assessment under S. 17 of Wealth Tax Act, 1963; whether department could proceed against petitioner under repealed Act, despite finalization of his return and thus reopen the case; and whether a notice under repealed Act could be given to petitioner while the case had been finalized and was not pending.

Khalid Mehmood v. Collector of Customs, Customs House, Lahore 1999 SCMR 1881 ref.

Siraj-ud-Din Khalid, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 17th Julie, 2011.

SCMR 2011 SUPREME COURT 1673 #

2011 SCMR 1673

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

SHAHID HUSSAIN alias MU LTANI---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 225-L of 2011, decided on 17th May, 2011.

(On appeal from the order dated 26-1-2011 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 605-B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/392/411/34---Qatl-e-amd, robbery, dishonestly receiving stolen property and common intention---Bail, grant of---Case of further inquiry---Extra judicial confession---Joint recovery---Rule of consistency---Applicability---Accused was not nominated in F.I.R. and he was nominated through a supplementary statement made by complainant---Validity---Alleged extra judicial confession was a joint confession and even alleged recoveries were joint recoveries, thus their evidentiary worth was next to nothing---Co-accused who was attributed similar role to that ascribed to the accused had already been admitted to post arrest bail by High Court---Case against accused called for further inquiry into his guilt within the purview of S.497(2), Cr.P.C.-Bail was allowed.

Mian Ghulam Hussain, Advocate Supreme Court for Petitioner.

Asjad Javed Ghural, Additional Prosecutor-General, Punjab for the State.

Complainant in person.

Date of hearing: 17th May, 2011.

SCMR 2011 SUPREME COURT 1675 #

2011 SCMR 1675

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Tariq Parvez and Amir Hani Muslim, JJ

Mst. NADIA MALIK---Appellant

Versus

Messrs MAKKI CHEMICAL INDUSTRIES PVT. LTD. through Chief Executive and others---Respondents

Civil Appeal No. 1733 of 2002, decided on 2nd June, 2011.

(On appeal from judgment dated 4-11-2002 of the Lahore High Court, Lahore, passed in E.F.A. No. 690 of 2002).

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 19(2)-Execution of decree, modes for---Scope---Word "or" used twice in S. 19(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001 would be read disjunctively classifying three different modes for execution of decree---Banking Court could execute decree by applying provisions of C.P.C., or in a manner provided under any other law for the time being in force or at request of decree holder, which must be in writing.

(b) Civil Procedure Code (V of 1908)---

----O. XXI, Rr. 84, 85 & 86---Non-deposit of 3/4 of auction money by purchaser within 15 days provided under proclamation---Application by purchaser seeking extension of time for such deposit after expiry of stipulated period of 15 days---Acceptance of such application by Executing Court---Validity---Language of O. XXI, Rr. 84 & 85, C.P.C., was mandatory in nature---Language used in proclamation requiring deposit of 3/4 purchase money within 15 days of sale was borrowed from mandatory provisions of O. XXI, R. 85, C.P. C. Such failure for being violative of mandatory conditions provided under proclamation had rendered sale auction proceedings as nullity---Executing Court in case of such failure could forfeit deposited amount and order resale of property, resultantly defaulting purchaser would forfeit all claims to property---Violation of such condition would not empower Executing Court to extend unilaterally time for deposit of such money---Executing Court had wrongly entertained such belated application and that too without notice---Principles.

Afzal Maqsood Butt v. Banking Court No. 2, Lahore and others PLD 2005 SC 470 and Manilal Mohanlal Shah and others v. Sardar Sayed Ahmed Sayed Mahmad and others AIR 1954 SC 349 rel.

----S. 19---Civil Procedure Code (V of 1908), O. XXI, Rr. 54(2), 67, 84, & 85---Execution of decree---Sale of mortgaged property, confirmation of-Objection petition by judgment debtor that no auction was held and entire auction proceedings were fictitious and fraudulent; that proclamation issued neither mentioned venue of auction nor was affixed at notice board of court; and that minutes of auction proceedings and attendance sheet of parties and participants in auction were not placed on record---Purchaser's plea that judgment debtor had not deposited 20% amount along with such application---Validity---Auction proceedings could not be held to be transparent in absence of fixation of proclamation on notice board of court---Non-mentioning of venue of auction in proclamation was violative of provisions of O. XXI, Rr. 54(2) & 67, C.P.C.-According to report of Court Auctioneer, auction proceedings were concluded at 5-10 p.m., when purchaser deposited 1/4th purchase money through pay order, when by that time Banks were closed---Record showed that auction proceedings were not conducted transparently and were fake---Sale in favour of auction purchaser was violative of provisions of O. XXI, R. 85, C.P.C., and nullity and could be challenged by interested person even though same having been confirmed by Executing Court---Non-deposit of 20% amount by objector could be condoned in exceptional circumstances when auction was violative of O. XXI, Rr.54(2), 67, 85 & 86, C.P.C., and sale was confirmed erroneously by Executing Court---Such sale was set aside in circumstances---Principles.

(d) Civil Procedure Code (V of 1908)---

----O. XXI, R. 85---Sale/auction of property in violation of provisions of O. XXI, R. 85, C.P.C.---Validity---Such sale/auction would be nullity and could be challenged by interested party even though same having been confirmed by Executing Court.

(e) Civil Procedure Code (V of 1908)---

----O. XXI, R. 90---Provisions of O. XXI, R. 90, C.P.C., would be read with exception---Any law without exception would be a bad law.

(f) Interpretation of statute---

----Any law without exception would be a bad law.

(g) Civil Procedure Code (V of 1908)---

---O. XXI, Rr. 54(2) & 67---Proclamation of sale neither affixed on notice board of' Court nor venue of sale/auction mentioned therein---Validity---Such sale/auction for being violative of provisions of O. XXI, Rr. 54(2) & 67, C.P.C., could not be held to be transparent.

(h) Civil Procedure Code (V of 1908)---

---O. XXI, Rr. 54(2), 67, 85, 86 & 90---Sale/auction being violative of provisions of O. XXI, Rr. 54(2), 67, 85 & 86, C.P.C.---Condition of deposit of 20% of sale amount by a party objecting to such sale---Validity---Object of deposit of such amount under O. XXI, R. 90, C.P. C., being to ensure making of objections by bona fide persons and prevent misusing of such rule to frustrate sale---Such condition could be condoned in exceptional circumstances, when sale/auction was violative of mandatory provisions of O. XXI, Rr. 54(2), 57, 85 & 86, C.P. C.

Pakistan Industrial Credit and Investment Corporation Ltd. Peshawar Cantt. v. Government of Pakistan through Collector Customs, Customs House, Jamrod Road 2002 CLD 1; Muhammad Ikhlaq Menton v. Zakaria Ghani and others PLD 2005 SC 819; Al-Hassan Feeds and others v. UBL Jinnah Road Abbottabad 2004 CLD 275; Messrs Tawakkal Export Corporation v. Messrs Muslim Commercial Bank Ltd. and others 1998 MLD 866; Messrs International Laboratories Ltd. v. Employees Union and another PLD 1982 SC 46; Mst. Murad Begum v. Muhammad Rafiq PLD 1974 SC 322; Madan Gopal and others v. Maram Bepari and others PLD 1969 SC 617 and 2010 SCMR 827 distinguished.

Amir Alam Khan, Senior Advocate Supreme Court for Appellant.

Gul Zarin Kyanai, Senior Advocate Supreme Court for Respondents Nos. 1 to 4.

Nemo for Respondents Nos. 5 to 6.

Sajid Mehmood Sh. Advocate Supreme Court and Altaf Elahi Sheikh, Advocate Supreme Court for Respondent No. 7.

Date of hearing: 2nd June, 2011.

SCMR 2011 SUPREME COURT 1686 #

2011 SCMR 1686

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

SAEED AHMAD---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 361-L of 2011, decided on 9th June, 2011.

(On appeal from the order dated 28-4-2011 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 2233-B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860)---Ss. 302/324/34/109---Qanun-e-Shahadat (10 of 1984), Art. 39---Qatl-e-amd, attempt to commit Qatl-e-amd, common intention and abetment---Bail, grant of---Case of further inquiry---Confession before police---Challan, filing of---At the time of murder, accused was abroad and only evidence against the accused was his confession before police during custody--Validity---Confession made by accused person before police in its custody was inadmissible in evidence---Nothing was available on record to connect recovered cash with alleged offences---Investigation had already been finalized and challan was submitted in Court, thus physical custody of accused was not required for the purposes of investigation---Case against accused was of further inquiry into his guilt within the purview of S. 497(2) Cr.P.C.---Bail was allowed.

Syed Ehtisham Qadir Shah, Advocate Supreme Court with Mehmood-ul-Islam, Advocate-on-Record for Petitioner.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 9th June, 2011.

SCMR 2011 SUPREME COURT 1688 #

2011 SCMR 1688

[Supreme Court of Pakistan]

Present: Javed Iqbal and Nasir-ul-Mulk, JJ

AL-JEHAD TRUST and another----Petitioners

Versus

LAHORE HIGH COURT through Registrar and others---Respondents

Constitution Petition No. 38 of 2011 decided on 25th July, 2011.

(Petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan. 1973).

(a) Constitution of Pakistan---

----Arts. 1840) & 203---Pakistan Criminal Law Amendment Act (XL of 1958), Ss. 3 & 4---Emigration Ordinance (XVIII of 1979), Ss. 18 & 22---Petition under Art. 184(3) of the Constitution before Supreme Court---District and Sessions Judge appointed as Special Judge (Central) on deputation for three years---Complaint against Special Judge made to Member Inspection Team High Court that in spite of his best efforts, he could not get copy of order of acquittal of complainant passed by Special Judge in a criminal case registered under Ss. 18 & 22 of Emigration Ordinance, 1979 as same was not found available in judicial file and his formal application for obtaining its copy was sent back to him---Surprise visit of Court of' Special Judge and taking of judicial file into possession by another. District and Sessions Judge---Repatriation of Special Judge to High Court and his posting as OSD, issuance of show cause notice to him and initiation of disciplinary proceedings against him by High Court---Special Judge alleged such actions taken against him to be mala fide and un-constitutional as another District and Sessions Judge was not competent to conduct raid and remove files from his Court for same being under administrative control of Ministry, of Law, Government of Pakistan, which was competent to take cognizance of such complaint---Validity---Record showed that such surprise visit of' court of Special Judge had been made by another District and Sessions Judge at telephonic direction of such Member for requisitioning record of such criminal case---Such matter had been brought into notice of Chief Justice of High Court, who had directed for such visit and submission of detailed report---Report of such another District and Sessions had been brought into notice of Chief Justice, who had directed for calling explanation from Special Judge---Such Member had also visited court of Special Judge and failed to check authenticity and contents of' such complaint---Special Judge was under administrative control of High Court and had got no lien against such post being deputationist---Special Judge had been repatriated to High Court, which having exclusive jurisdiction to initiate disciplinary action against him could not be refrained therefrom---Question of public importance relating to enforcement of' fundamental right would be sine qua non for invoking original jurisdiction of Supreme Court under Art. 184(3) of the Constitution--Special Judge had furnished his explanation to show cause notice---Inquiry proceedings against Special Judge could not be declared at such stage as arbitrary or mala fide being dependent on evidence to be recorded by Inquiry Officer---Member Inspection Team of the High Court would examine applications moved by Special Judge and other material available on record and provide hint proper opportunity of hearing---Special Judge in case of any grievance might approach forum concerned available in its hierarchy for its redressal,' if so desired---Supreme Court dismissed such petition for being not maintainable in circumstances.

Capital Development Authority v. Mrs. Shaheen Farooq 2007 SCMR 1328; Salahuddin Tirmzi v. Election Commission of Pakistan PLD 2008 SC 735; Muhammad Bashir v. Station House Officer PLD 2007 SC 539; Shahid Orakzai v. Pakistani Muslim League. 2000 SCMR 1969; Amatul Begum v. Muhammad Ibrahim Shaikh 2004 SCMR 1934; Zahur Ellahi v. State PLD 1977 SC 273; PLD 2010 SC 878; Zulfiqar Ali Baba v. Government of the Punjab PLD 1997 SC 11; Gul Usman v. Ahmero 2000 SCMR 866; Bank of Punjab v. Haris Steel Industries PLD 2010 SC 1109; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61; Mubashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Asad Ali v. Federation of Pakistan PLD 1998 SC 161; Federation of Pakistan v. Zafar Awan, Advocate PLD 1992 SC 72; Zafar Await v. Islamic Republic of Pakistan PLD 1989 FSC 84; Federation of Pakistan v. Nasrullah Khan Wazir 2005 TD (Service). 49 and Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642 ref.

(b) Constitution of Pakistan---

----Art. 184(3)---Exercise of jurisdiction of Supreme Court under Art.184(3)---Scope---Essential conditions---Question of public importance relating to enforcement of any fundamental right would be sine qua non for exercise of such jurisdiction---Principles.

A bare perusal of Article 184(3) of the Constitution would reveal that it has been couched in a very simple and plain language, thus, it hardly needs any scholarly interpretation. The jurisdiction as conferred upon Supreme Court under Article 184(3) of the Constitution. can be exercised only where a question of public importance with reference to the enforcement of any of the fundamental rights is involved, meaning thereby that the question of public importance is sine qua non for exercise of jurisdiction under Article 184(3) of the Constitution.

Syed Zulfiqar Mehdi and others v. Pakistan International Airlines Corporation through M.D. Karachi and others 1998 SCMR 793; Jamat-e-Islami through Amir and others v. Federation of Pakistan and others PLD 2008 SC 30;Zafar Ali Shah v. Pervez Musharraf PLD 2000 SC 869; Qazi Hussain Ahmad v. Pervez Musharraf, Chief Executive PLD 2002 SC 853; Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; Wattan Party v. Federation of Pakistan PLD 2006 SC 697; Wasim Sajjad v. Federation of Pakistan PLD 2001 SC 233; Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Amanullah Khan v. Chairman Medical Research Council 1995 SCMR 202; Zulfiqar Mehdi v. Pakistan International Airlines Corporation 1998 SCMR 793; All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600; State Life Insurance Employees Federation v. Federal Government of Pakistan 1994 SCMR 1341; Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583; Muhammad Siddique v. Government of Pakistan PLD 2005 SC 1; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Javed Jabbar and 14 others v. Federation of Pakistan and others PLD 2003 SC 955 and Jamat-e-Islami v. Federation of Pakistan PLD 2008 SC 30 rel.

----Art. 184(3)---Article 184(3) of the Constitution, interpretation of--Principles.

While construing Article 184(3) of the Constitution, the interpretative approach should not be ceremonious observance of the rules or usages of interpretation, but regard should be had to the object. and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration from the trait of provisions which saturate and invigorate the entire Constitution, namely, the Objectives Resolution (Article 2-A), the Fundamental Rights and the Principles of Policy so as to achieve democracy, tolerance, equality and social justice according to Islam.

I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 and Khuda Baldish v. State PLD 1988 SC 413 rel.

Habib-ul-Wahab-ul-Khairi, Advocate Supreme Court and Mahmood A. Sheikh, Advocate-on-Record for Petitioners.

Muddasir Khalid Abbasi, A.A.-G. along with Muhammad Akram, D.R. (Confidential) Lahore High Court, Lahore for Respondents Nos. 1 to 4.

Dil Muhammad Khan Alizai, D.A.-G. for Respondent No.5.

Date of hearing: 16th June, 2011.

SCMR 2011 SUPREME COURT 1708 #

2011 SCMR 1708

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

RIAZ JAFAR NATIQ---Petitioner

Versus

MUHAMMAD NADEEM DAR and others---Respondents

Criminal Petition No. 347-L of 2011, decided on 8th June, 2011.

(On appeal from the judgment dated 14-4-2011 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 1642-B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497(1)---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art. 185(3)---Issue of cheque dishonestly---Bail grant of--Non-prohibitory clause of S. 497, Cr. P. C. ---Allegation against accused was that he issued a cheque for a sum of Rs. 20 million, which was dishonoured on presenting in bank---Effect---Where a case fell within non prohibitory clause of S. 497, Cr.P.C. the concession of granting bail must be favourably considered and should only be denied in exceptional cases---Bail was allowed.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 fol.

Shawar Khilji, Advocate Supreme Court for Petitioner.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 8th June, 2011.

SCMR 2011 SUPREME COURT 1709 #

2011 SCMR 1709

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Amir Hani Muslim, JJ

KARACHI CHAMBER OF COMMERCE AND INDUSTRY, KARACHI---Appellant

Versus

SINDH LABOUR COURT NO. V, KARACHI and others---Respondents

Civil Appeal No. 61-K of 2010 out of Civil Petition No. 66-K of 2010, decided on 21st July, 2011.

(Against the judgment dated 1-12-2009 passed by High Court of Sindh, Karachi in Constitutional Petition No. S-295 of 2005).

(a) Industrial Relations Act (IV of 2008)---

----S. 2(xiv)-Industrial Relations Ordinance (XCI of 2002), S.2(xvii)---Term "industry" as defined in S. 2(xiv) of Industrial Relations Act, 2008 and S. 2(xvii) of Industrial Relations Ordinance, 2002---Distinguishing features stated.

Industry is essentially a human activity in which capital and labour are conjoined for the purpose of producing goods and services for sale as a means of earning a livelihood. However, the distinguishing feature is that the earning of profit is not essential since the objectives of the industry may even be to provide any service to the community in an organized manner, wherein profits are not made. It is perhaps for this reason that the words "engaged in an organized economic activity" appearing in the definition of "industry" in section 2(xvii) of Industrial Relations Ordinance, 2002 are missing in such definition appearing in section 2(xiv) of Industrial Relations Act,.2008. Perhaps the law makers thought that organized economic activity essentially denotes the profit motive.

(b) Industrial Relations Act (IV of 2008)---

---Ss. 2(xiv), 3 & 12---Industrial Relations Ordinance (XCI of 2002), Ss. 2(xvii)---Companies Ordinance (XL VII of 1984), S. 42---Constitution of Pakistan, Art. 17(1)---Chamber of Commerce and, Industry---Right of workers of Chamber to form a Trade Union---Scope---Chamber according to its Memorandum and Articles of Association did provide services to its members and general business community---Chamber was a non-profit organization as profits earned thereby were not pocketed by its members or Managing Committee, but were spent on its objectives---Earning of profit would not be essential for an industry as its objective might even be to provide any service to community in an organized manner without earning profit---Industrial Relations Ordinance, 2002 being a beneficial legislation would be interpreted in favour of workers liberally---Freedom of association guaranteed under Art. 17(1) of the Constitution included right of workers to form Trade Unions---Such Chamber for providing services to its members by charging fee was an "industry" as defined in Industrial Relations Ordinance, 2002 and Industrial Relations Act, 2008---Workers of Chamber had a right to form a Trade Union, in circumstances.

A.F. Ferguson and Co. v. The Sindh Labour Court and another PLD 1985 SC 429; Board of Governors Aitchison College, Lahore v. Punjab Labour Appellate Tribunal and others 2001 SCMR 1928; Sh. Ahmad Sadiq v. Chief Settlement Commissioner and others PLD 1974 SC 368; Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another PLD 1997 SC 781 and Agriculture Workers Union v. Registrar of Trade Union 1997 SCMR 66 ref.

Army Welfare Sugar Mills Workers Union v. Army Welfare Sugar Mills 2009 SCMR 202 = 2009 PLC 132 rel.

Khalid Javed, Advocate Supreme Court for Appellant.

Ex parte for Respondent No. 1.

Respondent No. 2 in person.

Respondent No. 3 in person.

Date of hearing: 7th July, 2011.

SCMR 2011 SUPREME COURT 1716 #

2011 SCMR 1716

[Supreme Court of Pakistan]

Present: Justice Tariq Parvez (Chairman), Justices Asif Saeed Khan Khosa, Dr. Fida Muhammad Khan and Dr. Muhammad Al-Ghazali (Members)

ABDUL HAMEED and others---Petitioners

Versus

THE STATE---Respondent

Jail Shariat Petition No. 31 of 2010, decided on 6th May, 2011.

(On appeal from the judgment dated 26-11-2010 of the Federal Shariat Court, Islamabad passed in Jail Criminal Appeal No. 3212/I to 326/L of 2004 and Criminal Appeal No. 3/L of 2005 and Criminal Appeal No.60-L of 2005).

Penal Code (XLV of 1860)---

----S. 354-A---Constitution of Pakistan, Art. 203-F (2B)---Stripping a woman of her clothes publically---Contentions were that according to F.I.R. and sketch map of scene of crime alleged occurrence had taken place inside room at mid night and that provisions of S. 354-A, P. P. C. were not attracted a. there was no exposure to public---Leave to appeal was granted---Inter alia to consider the submissions.

M. Zaman Bhatti, Advocate Supreme Court for Petitioners.

Malik Irfan, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 6th May, 2011.

SCMR 2011 SUPREME COURT 1717 #

2011 SCMR 1717

[Supreme Court of Pakistan]

Present: Javed Iqbal and Nasir-ul-Mulk, JJ

IRSHAD MUHAMMAD SHAH---Petitioner

Versus

HESCO and another---Respondents

Civil Petition No. 1114 of 2010, decided on 14th June, 2011.

(On appeal from the order dated 6-4-2010 passed by the Federal Service Tribunal, Islamabad in Appeal No. 1336(R) of 2009).

Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan, Art. 212(3)---Departmental appeal---Limitation---Appeal filed by civil servant was dismissed by Service Tribunal as his departmental appeal was time barred---Validity---Service Tribunal had rightly dismissed the appeal as his departmental appeal was time barred---No irregularity or illegality was pointed out warranting interference by Supreme Court in the judgment passed by Service Tribunal---Leave to appeal was refused.

Muhammad Aslam v. WAPDA 2007 SCMR 513 rel.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 14th June, 2011.

SCMR 2011 SUPREME COURT 1719 #

2011 SCMR 1719

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

KHALID MEHMOOD and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Petition No. 413-L of 2011, decided on 28th June. 2011.

(Against the order dated 30-5-2011 of the Lahore High Court. Lahore passed in Criminal Miscellaneous No. 6269-B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 498---Bail, grant of---Accused persons did not claim possession of shop/subject matter of F.I.R. and nothing was to be recovered front them---Bail was allowed.

Rafique Javed Butt, Advocate Supreme Court for Petitioners with Petitioners in person.

Asjad Javed Ghural, Additional P.-G. for the State.

Date of hearing: 28th June, 2011.

SCMR 2011 SUPREME COURT 1720 #

2011 SCMR 1720

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Anwar Zaheer Jamali, JJ

Mst. HAJIRAN through Attorney---Petitioner

Versus

INAYATULLAH and others---Respondents

Civil Petition No. 82-K of 2011, decided on 18th April, 2011.

(On appeal from judgment of High Court of Sindh, Circuit Court Hyderabad dated 8-12-2010, passed in C.P. No. D-1630 of 2010).

West Pakistan Land Revenue Act (XVII of 1967)---

----Ss. 42 & 161---Specific Relief Act (1 of 1877), Ss. 42 & 54---Constitution of Pakistan, Arts. 185(3) & 199---Inheritance mutation, non-attestation of---Constitutional petition---Maintainability---Supreme Court granted leave to appeal to consider questions as to whether availability of remedy of appeal to respondent against order of Executive District Officer (Revenue) was not an adequate and effective alternate remedy, which he failed to avail; whether exercise of jurisdiction under Art. 199 of the Constitution by High Court for passing impugned judgment was an appropriate exercise of such jurisdiction, moreso when petitioner agitated that no due opportunity of hearing was afforded to her before passing impugned judgment; and whether filing of suit for declaration and permanent injunction by petitioner for challenging old mutation entries in Revenue Record and a judgment to such effect by Civil Court were not material fact for resolving controversy between parties regarding inheritance claim of legal heirs of deceased, which High Court failed to take into consideration while passing impugned judgment?

Salahuddin Panhwar, Advocate Supreme Court for Petitioner.

Neel Keshav, Advocate Supreme Court for Respondents.

Date of hearing: 18th April, 2011.

SCMR 2011 SUPREME COURT 1722 #

2011 SCMR 1722

[Supreme Court of Pakistan]

Present: Javed Iqbal, Jawwad S. Khawaja and Anwar Zaheer Jamali, JJ

SECRETARY TO GOVERNMENT OF PUNJAB AGRICULTURE DEPARTMENT LAHORE and another---Appellants

Versus

FAIZ AHMAD DOGAR---Respondent

Civil Appeal No. 115 of 2006, decided on 26th November: 2010.

(On appeal from the judgment dated 30-5-2005 passed by the Punjab Service Tribunal, Lahore in Appeal No 306 of 2005).

(a) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974--

----S. 9(2)---Constitution of Pakistan, Art. 212---Leave to appeal was granted by Supreme Court to consider the contention of Authorities that in view of policy formulated by Government of Punjab, Service and General Administration Department (Regulation Wing) on 19-4-2003, the respondent could not claim pro forma promotion from back date particularly when no other officer junior to him was promoted as Horticultural Officer of Agriculture Department.

Government of Pakistan through Establishment Division Islamabad and 7 others v. Hameed Akhtar Niazi Academy of Administrative. Training Walton. Lahore and others 2003 PLC (CS) 212 and Rizwan Ashraf v. Capital Development 'Authority through its Chairman. Islamabad and another 2004 PLC (CS) 724 ref.

(b) Punjab Civil Servants (Appointment and Conditions of Service) Rides, 1974--

----S. 9(2)---Pro forma promotion---Scope---Departmental Promotion Committee---Convening of meeting-Principle-Predecessor of civil servant stood retired on 9-1-2003 and after completion of necessary formalities the promotion case of civil servant was placed before Departmental Promotion Committee in its meeting held on 6-7-2004 when civil servant was promoted---Service Tribunal allowed the appeal filed by civil servant and he was given pro forma promotion from back date---Validity---Delay had occurred in convening the meeting of Departmental Promotion Committee and convening of meeting could not be called so frequently because consideration for promotion did not involve only the question of seniority but competence, rectitude and antecedent and examination of official record as promotion could not be made in a mechanical manner hence no time limit could be imposed for convening the meeting of Departmental Promotion Committee which should be held within a reasonable time-Supreme Court directed that 6-7-2004 would be considered as date of promotion of civil servant and set aside the judgment passed by Service Tribunal---Appeal was allowed.

Government of the Punjab v. Muhammad Awais Shahid 1991 SCMR 696 and Muhammad Iqbal v. Saeeda Bano 1991 SCMR 1559 rel.

Saeed Yousaf Khan, Additional Advocate-General for Appellant.

Nemo for Respondent.

Date of hearing: 26th November, 2010.

SCMR 2011 SUPREME COURT 1725 #

2011 S C M R 1725

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

MUHAMMAD ASHRAF ASIM---Petitioner

Versus

SAJJAD AHMAD and others---Respondents

Criminal Petition No. 1270-L of 2009, decided on 26th May, 2011.

(On appeal from the order dated 17-9-2009 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 11436-B of 2009).

Criminal Procedure Code (V of 1898)---

----S. 497(2) & (5)---Penal Code (XLV of 1860),' Ss. 302/148/149---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd and rioting armed with deadly weapons---Petition for cancellation of bail---Case of further inquiry---Two versions---Submission of Challan---Investigation of case had already been finalized and Challan was submitted in Court for trial---Effect---Custody of accused was not required by police at such juncture for the purposes of investigation---Prosecution itself had two versions of the death of deceased, one advanced by complainant party and the other concluded by investigating agency, which divergence had rendered case against accused one of further inquiry---Accused was admitted to bail almost two years ago and there had never been any .allegation against him regarding any misuse or abuse of concession of bail---Considerations for grant of bail and those for its cancellation were entirely different---Supreme Court declined cancellation of bail of accused at such late stage---Leave to appeal was refused.

Rai Bashir Ahmed, Advocate Supreme Court for Petitioner.

Ch. Zubair Ahmad Farooq, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 26th May, 2011.

SCMR 2011 SUPREME COURT 1727 #

2011 SCMR 1727

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

ABDUL SALAM and another-Petitioners

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB and others---Respondents

Civil Petitions Nos. 1449-L and 1450-L of 2010, decided on 14th July, 2011.

(On appeal against the judgment dated 17-6-2010 passed by the Lahore High Court. Lahore in W.Ps. Nos. 8567 of 2009 and 9624 of 2010).

Punjab Education Department (School Education) Recruitment Rules, 1987---

----Schedule--- Government of Punjab Notification No. SOR-III-S&GAD-1-19/2004, dated 24-12-2008---Constitution of Pakistan, Arts.185(3) & 212(3)---All teachers in the lower scale shall be promoted to EST out of 50% in service quota in accordance with their qualification required for the EST and length of their service; Elementary School Teachers and English Graduate Teachers will be promoted to the post of SST out of 50% in-service quota in accordance with the amendment introduced by the Government of Punjab vide Notification No. SOR-III-S&GAD-1-19/2004 dated 24-12-2008 in Punjab Education Department (School Education) Recruitment Rules, 1987---Petition for leave to appeal was dismissed by Supreme Court.

Ihsanul Haq Chaudhry, Advocate Supreme Court for Petitioners with Petitioners in person (in both cases).

M. Hanif Khatana, Additional A.-G. for Respondents (in both cases).

Date of hearing: 14th July, 2011.

SCMR 2011 SUPREME COURT 1736 #

2011 S C M R 1736

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

MUHAMMAD AMIN and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Petition No. 208-L of 2011, decided on 16th May, 2011.

(On appeal from the order dated 23-2-2011 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 1 of 2011 in Criminal Appeal No. 100 of 2011).

Criminal Procedure Code (V of 1898)---

----S.426---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Recovery of narcotics---Suspension of sentence---Absence of accused---Alleged recovery of 56 kilograms of Chars was made in the absence of accused at the instance of another accused already in custody in some other case---Date, time and place of arrest of accused was not shown with certainty by police---Site plan also did not show that place of recovery had two exits---Effect---Considering it a fit case for reappraisal of entire evidence, Supreme Court converted petition into appeal and sentence of life imprisonment awarded to both the accused was suspended and they were released on bail---Petition was allowed.

Malik Saeed Hassan, Senior Advocate Supreme Court for Petitioners.

Asjad Javed Ghural, Additional P.-G. for the State.

Date of hearing: 16th May, 2011.

SCMR 2011 SUPREME COURT 1737 #

2011 S C M R 1737

[Supreme Court of Pakistan]

Present: Javed Iqbal and Nasir-ul-Mulk, JJ

Dr. SHAHNAZ WAJID---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division, Government of Pakistan, Islamabad---Respondent

Civil Petition No. 297 of 2010, decided on 21st June, 2011.

(On appeal from the judgment dated 13-1-2010 passed by Federal Service Tribunal, Islamabad, passed in Appeal No. 384(R)CS of 2009).

(a) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----R. 8-A---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan, Arts. 25 & 212(3)---Appeal---Medical Surgeon in Government Hospital---Application for consideration of case for promotion in BS-20---Requisite qualification, lacking of---Dismissal of petitioner's appeal by Service Tribunal---Validity---Prescribed mandatory pre-requisite to get promotion in BS-20 was "higher diploma", which petitioner did not have---In absence of any amendment in existing rules, recommendations for promotion, if any made, would have no substantial bearing on merits of petitioner's case---Provision of Art. 25 of the Constitution would not apply to petitioner's case---Supreme Court refused to grant leave to appeal in circumstances.

(b) Constitution of Pakistan---

----Art. 25---Reasonable classification of persons and things for equal protection of law---Scope.

Equality clause does not prohibit different laws for those differently circumstanced provided a rational standard is laid down to guide the discretion of the relevant authority to choose the appropriate law. A State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class. In fact almost all legislation involves some kind of classification whereby some people acquire rights or suffer disabilities, which others do not. Expression "equal protection of law" does not place embargo on power of State to classify either in adoption of police laws or tax laws or eminent domain laws, rather gives to State exercise of wide scope of discretion, of course, nullifying "what is without any reasonable basis". The State has the power of what is known as "classification" on the basis of rational distinctions relevant to the particular subject dealt with. Classification may be due to geographical situation or it may be based on territorial, economic, communal and other similar considerations. The Constitution itself contemplates passing of different laws for different Provinces by their respective legislatures. The doctrine of reasonable classification is founded on the assumption that the State has to perform multifarious activities and deal with a vast number of problems. It, therefore, should have the power to make a reasonable classification of persons and things to which different treatment may be accorded, provided there is legitimate basis for such difference the State can make laws to attain special objects, and the administrative authorities may make classification, in pursuance of such laws. But the classification should not be arbitrary and capricious and must rest on reasonableness and have a fair nexus and a just relation with the need for which classification is made

Ziaullah Khan v. Government of Punjab PLD 1989 Lah. 554; Akram Khan v. State PLD 1976 Lah. 1224; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; I. A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Aziz Begum v. Federation of Pakistan PLD 1990 SC 899; Balochistan Bar Association v. Government of Balochistan PLD 1991 Quetta 7; Kathi Raning v. State of Saurashtra AIR 1952 SC 123; Dhirendra v. Supdt. and Remembr AIR 1954 SC 424; Zain Noorani v. Secretary of National Assembly PLD 1957 Kar. 1; Government of Punjab v. Naila Begum PLD 1987 Lah. 336; Charanjit Lal v. Union of India AIR 1951 SC 41; State of West Bengal v. Anwar Ali AIR 1952 SC 75; Rehman Shagoo v. State of J&K 1958 Cri L Jour 885; TK Abraham v. State of Tra. Co. AIR 1958 Ker. 129 and PLR 1957 (1) 743.

M. Shoaib Shaheen, Advocate Supreme Court for Petitioner.

Mujtaba Haider Sherazi, D.A.-G. and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 21st June, 2011.

SCMR 2011 SUPREME COURT 1742 #

2011 S C M R 1742

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Khilji Arif Hussain, JJ

BASHER AHMED---Petitioner

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Civil Petition No. 851-L of 2010, decided on 16th June, 2011.

(Against order dated 25-3-2010 of Federal Service Tribunal Lahore, passed in M.P. No. 107 of 2009).

Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal, restoration of---Conceding statement---Effect---In view of conceding statement by authorities, Supreme Court directed that appeal before Service Tribunal was to be restored to its original number and would be decided in accordance with law---Appeal was allowed.

Petitioner in person.

Aazar Latif, D.A.-G. and Zahoor Ahmed, S.O. for Respondents.

Date of hearing: 16th June, 2011.

SCMR 2011 SUPREME COURT 1743 #

2011 S C M R 1743

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

CUTTING OF TREES FOR CANAL WIDENING PROJECT, LAHORE: In the matter of

Suo Motu Case No. 25 of 2009, decided on 15th September, 2011.

(a) Constitution of Pakistan---

----Arts. 9, 14, 184(3)---Pakistan Environmental Protection Act (XXXIV of 1997), S. 12---Public interest issue---Canal Road Project aimed at widening the road on both sides of the canal bank---Environmental impact--- Violation of Fundamental Rights---Scope---Widening the road, of necessity would cause, some damage to the green belt and thereby affect environment which had neither been quantified nor ascertained---Such apprehended effect may not be violative of Fundamental Rights of Right to Life unless it was shown by placing incontrovertible material before the court that same would lead to hazardous effects on environment and ecology to an extent that it would seriously affect human living---Approval of the project was granted by strictly complying with Pakistan Environmental Protection Act, 1997 and the regulations framed thereunder with conscious application of mind considering all relevant material and the attending circumstances---Held, Canal Road Project neither contravened Fundamental Rights of Right to Life nor the Right to Human Dignity---Principles.

Shehla Zia v. WAPDA PLD 1994 SC 693 ref.

(b) Public Trust, Doctrine of---

----Concept---Applicability---Scope---Canal Road Project aimed at widening the road on both sides of the canal bank---Green belt around both sides of the canal is a public trust resource and cannot be converted into private or any other use other than public purpose---Widening of the road is a public purpose and a minimum area is being affected and the remaining green belt/public park is much larger---Said public park has been recommended by the Mediation Committee to be declared as Heritage Park and recommendations of the Committee have been accepted by the Provincial Government in totality---Doctrine of Public Trust, in circumstances, cannot be said to have been compromised.

Arnold v. Mandy 6N.J.L.1, 53(1821); Illinois Central Railroad v. Illinois 146 US 387 (1892); Professor David Takacs ("The Public Trust Doctrine, Environmental Human Rights, and the Future of Private Property"; The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention; Rural Litig. and Entitlement Kendra v. State of Uttar Pradesh AIR 1985 SC 652, 656; Charan Lal Sahu v. Union of India (Bhopal Disaster case) AIR 1990 SC 1480; M.C. Mehta v. Kamal Nath 1997 1 SCC 388; M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu 1999 SCC 464; Th. Majra Singh v. Indian Oil Co. AIR 1999 J&K 81; Shehla Zia v. WAPDA PLD 1994 SC 693; Moulvi Iqbal Haider v. Capital Development Authority PLD 2006 SC 394 and Sustaining Urban Green Spaces: Can Public Parks be Protected under the Public Trust Doctrine? ref.

----S. 2(xlii)---'Sustainable development'---Definition and concept---Scope---Canal Road Project aimed at widening the road on both sides of the canal bank---Values of 'sustainable development' were kept in view while designing and approving the Canal Road Project as evident from the measures assured to be taken---Contention that approval of the Project was violative of the concept of sustainable development would not be tenable.

Shehla Zia v. WAPDA PLD 1994 SC 693 and Stockholm Declaration 1972 ref.

(d) Mediation---

----Court had referred the matter to Mediation Committee with consent of both the parties---Held, it would not be open for one of the parties to challenge Mediation Committee's report, particularly when the party had agreed to 95% of the recommendations made by the said Committee---Principles.

S.E. Makudam Muhammad v. T.V. Mahommad Sheik Abdul Kadir 1936 Madras 856 and Burgess v. Morton 1896 A.C. 136 ref.

(e) Constitution of Pakistan---

----Arts. 184(3) & 199---Pakistan Environmental Protection Act (XXXIV of 1997), Preamble---Question as to environmental human rights---Interference by Supreme Court---Scope---Judicial restraint---Extent---Canal Road Project aimed at widening the road on both sides of the canal---Such project fell under the policy making domain of Executive Authority---Supreme Court had referred the matter to the Mediation Committee with the consent of the parties and report of the Committee was accepted in entirety by the Provincial Government---No intervention in the matter, in circumstances, was called for, however Supreme Court issued directions in view of the report of Medication Committee.

One of the foundational values enshrined in the Constitution of Islamic Republic of Pakistan is principle of trichotomy of powers i.e. the legislature would legislate, the Executive would administer law and Judiciary would interpret the law.

By according an expanded meaning to the Fundamental Rights provisions of the Constitution, the Courts under Articles 199 and 184(3) of the Constitution have taken notice of public interest issues which has led to the development of public interest litigation. The public interest litigation was given new dimension by successive Chief Justices of Pakistan by developing the Human Rights cases jurisprudence whereunder petitions filed by less privileged classes of society on issues of public concern have been entertained and decided where contravention of fundamental rights was proved.

Supreme Court does not interfere in every issue of public concern under Article 184(3) of the Constitution but only where the action/order of the executive authority raises the question of enforcement of a Fundamental Right.

Many a time, policies/actions of executive authorities are challenged and issues are brought before the Court which have socio-political or economic dimensions, issues of lopsided policies being pursued, issues which have polarized the nation, issues which have bled and divided the nation and issues which reflect immoral or unwise use of public funds. Judges are humans. It is painful to sit back and watch the successive marches of folly. However, the constitutional constraint reflected in the trichotomy of powers obliges the Court to observe judicial restraint. It intervenes only when the policy/action of the State authority reflects violation of any law or a constitutional provision or when it relates to the enforcement of a Fundamental Right which inter alia includes Environmental Human Rights. The people/Constitution makers did not vest Supreme Court to sit over judgment on a purely policy decision taken by the competent executive authority unless of course it violates the law of the land.

When an order of governmental authority is challenged before the Court raising an environmental issue, the Court would examine as to whether the authority which passed the order was conscious of the relevant considerations; whether it deliberated over those and whether it took the decision after having the expert opinion and complying with the mandate of law? The issues which underpin the project under challenge related to traffic congestion, the widening of the Canal Road and the apprehended damage to ecology and environment. The Court would have intervened if the issues of rising traffic flow and congestion had not necessitated remedial measures; if feasibility of other alternative proposals had not been examined by the concerned department; if it had not got conducted Environmental Impact Assessment from a consultant and if the Environmental Protection Authority had not given environmental clearance after taking into consideration the relevant factors; if the doctrine of Public Trust or of Precautionary Principle for environmental protection was being violated or if the Provincial Government had not whole heartedly accepted the Mediation Committee's report which inter alia recommended declaring the greenbelt on both sides of the canal as a Heritage Park and had recommended only a partial widening of the road in question. These concerns had been adequately addressed by the competent bodies under the law. It is for the concerned department of the government to examine how best to meet traffic congestion and in this exercise it can solicit consultation from another agency or a body of experts to study the feasibility which in the present case was initially carried out by NESPAK and thereafter the matter was placed before the EPA- Punjab which again having solicited the opinion of experts granted approval with certain conditions. In such cases the Court may not have the requisite expertise to adjudicate. This is why the Court seeks the assistance of experts or experts' committee. The advantage of the experts' committees is that it enables the Court to receive technical expertise while the Judges are left to decide questions of law. Such committees reduce the chances of judicial arbitrariness and adds legitimacy to the judgments. The only aspect the Court would examine is whether the policy/act under challenge is violative of any provision of the law or the Constitution or any of the Fundamental Rights guaranteed under the Constitution and as interpreted by the courts from time to time

In view of the report of the Mediation Committee which had been accepted in entirety by the Provincial Government, no intervention of the Supreme Court was called for.

Supreme Court observed that Court was conscious of the historic and emotional appeal of the Canal which was built initially by the last Muslim Ruling Dynasty, the Mughals and extended in 1861 by the British. It is indeed an environmental asset. The greenery around it adds beauty and romance to the city. In times gone by there must have been flourishing fields, meadows and green valleys. Much later when the road on both sides of the canal was metalled, there would hardly have been a few residential colonies. But slowly and gradually, as the population increased, residential colonies were built to cater to the needs of the populace. The mushroom growth of residential colonies is a post independence phenomenon. It assumed a greater momentum in the last 3/4 decades. This caused massive damage to the flourishing fields, the orchards and to the habitats. The ill-conceived commercialization of residential areas had its toll as well. Industrialization on the outskirts of the city further confounded the situation and this resulted in traffic flow to multiply manifolds. The loss of those green valleys evokes a natural lament and nostalgia. But this is what happens to environment and ecology when human needs increase and the cities expand bringing in their wake pains.

The beauty of the canal and of the greenbelt on both sides of the Canal Road lie partly in beholder's eye i.e. human aesthetics, imagination, design and engineering. It is the human needs which require widening of the road.

Supreme Court acknowledged the admirable spirit demonstrated by petitioners' organization, by those individuals, architects, urban planners, academics and students for protection of city's ecological and environmental horizons. During hearing of the case, the Court was touched by the rainbow of idealism, of intellect, of architectural ability, of urban development and mental health expertise of graces and youthful exuberance. This was a living testimony to a vibrant civil society. This vibrance, vigilance and zeal must have acted as a watchdog for those entrusted with design and planning of the Canal Road Project and those who accorded environmental clearance. The widening of the road which is now confined to only a part of the Canal Road and the conditional approval granted by EPA, Punjab attaching stringent conditions to allay the environmental concerns is a vindication of the object for which the petitioners brought this issue before the Supreme Court. As long as this spirit is alive, the authorities and the leadership would continue to be guided by the values of sustainable human and urban development.

Supreme Court keeping in view the stance of the Government of Punjab that they have accepted the report of the Mediation Committee in entirety, held and directed as under:--

(i) The Bambawali-Ravi-Bedian (BRB) Canal and the green belt on both sides of the Canal Road (from Jallo Park till Thokar Niaz Beg) is a Public Trust. It shall be treated as a Heritage Urban Park forthwith and declared so by an Act to be passed by the Assembly as undertaken by the respondent-Provincial Government;

(ii) Widening of the road on both sides of the Canal Bank shall be in accord with the report submitted by the Mediation Committee;

(iii) Necessary corrections/modification of some of the underpasses on the Canal Road shall be carried out as suggested in the report of the Mediation Committee;

(iv) Proper Traffic Management Program shall be made and given effect to;

(v) Further improvement in public transport system shall be ensured;

(vi) Where needed and as recommended by the Committee, re-engineering of the junctions along the Canal Bank would be undertaken;

(vii) The service roads along certain parts of the Canal Road shall be constructed/improved;

(viii) Report of the Mediation Committee shall be implemented as agreed by the respondent-Provincial Government in letter and spirit;

(ix) Respondent-Provincial Government and TEPA shall ensure that minimum damage is caused to green belt and every tree cut would be replaced by four trees of the height of 6/7 feet arid this replacement when commenced and completed shall be notified through press releases for information of general public, copies of which would be sent to the Registrar of Supreme Court for our perusal; and

(x) Elaborate measures/steps be taken to ensure that the canal is kept clean and free of pollution. The steps should inter alia include throwing of liter and discharge of any pollutant in the canal a penal offence. The Chief Secretary, Government of Punjab shall ensure that a comprehensive action plan is prepared in this regard by the concerned department and report is submitted to the Registrar of Supreme Court within six weeks of the receipt of present judgment.

Mst. Sharif Bibi v. Muhammad Nawaz Shah 2008 SCMR 1702; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; 2000 CLC 471; Pakistan Tobacco Company Ltd. v. Federation of Pakistan 1999 SCMR 382; Javed Ibrahim Paracha v. Federation of Pakistan PLD 2004 SC 482; Muhammad Bashir v. Abdul Karim PLD 2004 SC 271; Trop v. Dulles 356 U.S. 86, 120 (1958); Narmada Bachao Andolan v. Union of India AIR 2000 SC 3751 and Thomas Hardy's "Madding Crowd" ref.

Ms. Imrana Tiwani, Convener LBT (Lahore Bachao Tehrik/Save Lahore Movement), Ms. Iram Aftab, LBT, Ms. Ayesha Batool, Ali Hassan for WWF, Pakistan, Ms. Naumana Amjad, Assistant Professor of Psychology, Punjab University, Kamil Khan Mumtaz, (Architect), Ms. Saima Ameen Khawaja, Lt. Col. (R) Ijaz Nazim, NGO Shajardost and Alexander Uvidine in Attendance.

Ch. Hanif Khatana, Additional A.-G. Punjab, Jawwad Hassan, Additional A.-G. Punjab, Salman Aslam Butt, Advocate Supreme Court and Nasim-ur-Rehman, Dy: Director, Environmental Protection Authority for Government of Punjab.

Dr. Parvaiz Hassan, Senior Advocate Supreme Court, Court Mediator.

Date of hearing: 15th August, 2011.

SCMR 2011 SUPREME COURT 1802 #

2011 S C M R 1802

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Tariq Parvez and Amir Hani Muslim, JJ

FAIZULLAH KHAN and others---Appellants/Petitioners

Versus

Haji ABDUL HAKEEM KHAN---Respondent

Civil Appeal No. 87 of 2011 and Civil Petitions Nos. 159 and 160 of 2011, decided on 15th June, 2011.

(On appeal from the judgment dated 29-12-2010 passed by the Peshawar High Court, D.I. Khan Bench passed in Civil Revisions Nos.240, 241 and 242 of 2005).

(a) N.-W.F.P. Pre-emption Act (X of 1987)---

----S. 20---Where the pre-emptor and the vendee are having equal right of pre-emption, pre-emptor(s) and vendee(s) are entitled to share the property equally pro rata on per capita basis---Words "equally", per capita" and "pro rata"---Definitions.

Kala Khan v. Ayyub Khan 1993 SCMR 543; Hakeem v. Khalid Wazir 2003 SCMR 1501; Abdul Latif v. Shaukat Ali 2006 MLD 735; Raja Muhammad Riaz v. Akber 2007 MLD 844; Haji Muhammad Iqbal Khan v. Gul Badshah 2008 CLC 1549; Aman Ullah Khan v. Gul Badshah PLD 2011 Pesh. 105; Muhammad Ismail Qureshi v. Government of Punjab PLD 1991 FSC 80; Feroze Khan v. Ahmad Yar 1992 MLD 1570; Muhammad Hayat v. Faiz Ali 2002 MLD 938; Muhammad Nawaz v. Ahmad Khan 2005 YLR 197; Haq Nawaz v. Bashir Ahmad 2006 YLR 3024; Wali Khan v. Noor Ahmad 2006 CLC 1715; Muhammad Arif Khan v. Muhammad Anwar 2006 MLD 625; Muhammad Khan v. Ameer Khan Gaddi Balloch 2008 YLR 296; Muhammad Tariq v. Asif Javed 2009 SCMR 240; Khan Gul Khan v. Daraz Khan 2010 SCMR 539; The Concise Oxford Dictionary (Eighth Edition) and The Dictionary of English Law (By Earl Jowitt) ref.

(b) N.-W.F.P. Pre-emption Act ( X of 1987)---

----Ss. 6, 9 & 20---Right of pre-emption---Scope---Right of pre-emption shall vest firstly in Shafi-Sharik; secondly in Shafi-Khalit; and thirdly in Shafi-Jar---Where more than one person are found by the court to be equally entitled to the right of pre-emption the property shall be distributed amongst them in equal shares---If the persons (vendee and pre-emptor) are equally entitled to the right of pre-emption, the property shall be distributed amongst them in equal shares---Where evidence on record clearly shows that both the parties are contiguous owners (Shafi-Khalit) of the land, notwithstanding the fact that they are vendees or pre-emptors, they all have the equal right of the pre-emption---Fact that the vendees have purchased the land in dispute vide mutations in their favour, does not affect their right of pre-emption, which is an independent right.

Amir Hasan v. Rahim Bakhsh and others ILR 19 All. 466 and Khan Gul Khan v. Daraz Khan 2010 SCMR 539 affirmed.

----S. 20---Right of pre-emption---Scope---If on the basis of evidence it is found by the court that both the pre-emptor and the vendee fall within the same class of pre-emptors and have equal right of pre-emption, the Court will grant a decree in equal shares; the vendee is not bound to take a specific plea under S.20, N.-W.F.P. Pre-emption Act, 1987 because even if a vendee is proceeded ex parte and even if there is no written statement on record, the court is still bound to grant decree in equal shares if ultimately it is found in evidence that both the parties belong to the same class of pre-emptors.

Amir Hasan v. Rahim Bakhsh and others ILR 199 All. 466 ref.

(d) N.-W.F.P. Pre-emption Act (X of 1987)---

----S. 6---Right of pre-emption---Notwithstanding whether a specific issue was framed or not with regard to preferential right, parties were aware about their case and they also led evidence as evident from the discussion in the judgment inasmuch as findings had also been recorded in that behalf, therefore contention that if no issue was framed as to whether party had preferential right of pre-emption, court needed to interfere with the case and matter was repelled.

The Province of East Pakistan v. Hasan Askary PLD 1971 SC 82 fol.

(e) Words and phrases---

---- 'Equally'; 'per captia' and 'pro rata'--- Definitions.

The Concise Oxford Dictionary (Eighth Edition); The Dictionary of English Law (By Earl Jowitt) and Advance Law Lexicon (3rd Edition 2005) quoted.

Gulzarin Kiani, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants/Petitioners.

Kh. Muhammad Farooq, Senior Advocate Supreme Court for Respondent.

Date of hearing: 15th June, 2011.

SCMR 2011 SUPREME COURT 1813 #

2011 S C M R 1813

[Supreme Court of Pakistan]

Present: Javed Iqbal, Jawwad S. Khawaja and Anwar Zaheer Jamali, JJ

Dr. SHER AFGAN KHAN NIAZI---Appellant

Versus

ALI S. HABIB and others---Respondents

Civil Appeal No. 1863 of 2005, decided on 29th July, 2011.

(On appeal from the order dated 6-4-2005 of the Lahore High Court, Rawalpindi Bench, in I.C.A. No. 20 of 2004).

(a) Penal Code (XLV of 1860)---

----Ss. 324/377-G/279/427, 322 & 420---Constitution of Pakistan, Arts.185(3) & 199---Death caused in road accident by rash and negligent driving of wagon by its driver---Registration of F.I.R. against driver of wagon---Subsequent addition of Ss. 322 & 420, P.P.C. in F.I.R. involving President of Toyota Motor Corporation and Managing Director of Indus Motor Company (respondents) due to failure of SRS (Supplemental Restraint System) Airbag installed in Toyota car driven by deceased causing his death, which amounted to cheating---Respondents' constitutional petition for quashing investigation against them accepted by High Court---Validity---Petitioner/complainant's plea was that High Court was not justified in quashing investigation at preliminary stage pending against respondents---Respondents' plea was that as no case of criminal liability was made against them, thus, High Court was justified to quash investigation---Supreme Court granted leave to appeal to consider in depth such contentions of both parties.

Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 and Malik Shaukat Ali and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281 ref.

(b) Penal Code (XLV of 1860)---

----Ss. 324/377-G/279/427, 322 & 420--- Criminal Procedure Code (V of 1898), Ss. 63, 249-A, 265-K, 551, 561-A---Police Rules, 1934, R.24.4---Constitution of Pakistan, Arts. 185(3) & 199---Death caused in road accident by rash and negligent driving of wagon by its driver---Registration of F.I.R. against driver of wagon---Subsequent addition of Ss. 322 & 420, P.P.C. in F.I.R. involving President of Toyota Motor Corporation and Managing Director of Indus Motor Company (respondents) due to failure of SRS (Supplemental Restraint System) Airbag installed in Toyota car driven by deceased causing his death, which amounted to fraud---Respondents' constitutional petition for quashing investigation against them accepted by High Court---Validity---Function of SRS Airbag was to provide protection to driver of car at time of accident in addition to primary protection provided by seat belt---Complainant-appellant's case was that respondents were responsible for death of deceased for having installed in his car a defective and substandard SRS Airbag---Respondents had not seriously disputed installation of SRS Airbag in car of deceased---Record showed that seat belt of car was in use of deceased at time of accident, but its SRS Airbag could not function properly and completely failed---Without having a proper investigation with association of respondents, no evidence could be collected to prima facie prove criminal negligence on their part for installation of defective SRS Airbag in car of deceased---Factum of "mala fides" or "mens rea" could not be proved without recording evidence or collecting incriminating material, but not in exercise of jurisdiction under Art. 199 of the Constitution read with S.561-A, Cr.P.C.---Questions as to whether SRS Airbag was designed to provide complete security to driver of car in all eventualities or same was just a safeguard and whether same remained non-functional at the time of accident and could be equated to criminal negligence or not, could not be answered without collection of evidence---Respondents had not joined investigation at time of passing impugned order by High Court and their point of view could not be obtained by police---High Court was obliged to afford an opportunity to Police to complete its investigation---Ingredients of Ss. 322 and 420, P.P.C., could be determined by Police and Trial Court after evaluating evidence, whereas High Court was not justified to form any opinion in such regard---Respondents could avail remedies under Ss. 63, 551, Cr.P.C., read with R. 24.7 of Police Rules, 1934 and Ss. 249-A and 265-K, Cr.P.C.---High Court in exercise of constitutional jurisdiction could not investigate disputed questions of facts---Innocence of respondents could not be determined at a premature stage by deciding that certain penal provisions would not be attracted---High Court, except in exceptional cases, would not quash criminal proceedings ordinarily in absence of exercise of powers by Trial Court under S.249-A or 265-K, Cr.P.C.,---High Court was not justified to quash investigation against respondents in case of availability of alternate/ adequate remedies and at premature stage---Supreme Court set aside impugned judgment while directing Investigating Officer to proceed with matter in accordance with law in a fair and transparent manner.

Nawazul Haq Chowhan v. State 2003 SCMR 1597; Gul Ahmed Textile Mills Ltd v. Collector of Customs (Appraisement) 1990 MLD 126; Pak. Metal Industries v. Assistant Collector 1990 CLC 1022; Allah Wasaya v. Tehsildar/AC 1st Grade 1981 CLC 1202; Syed Riaz Hussain Zaidi v. Muhammad Iqbal PLD 1981 Lah. 215 and Abdul Hafeez v. Chairman, Municipal Corporation PLD 1967 Lah. 1251 rel.

Nawazul Haq Chowhan v. State 2003 SCMR 1597 rel.

----Supplemental Restraint System installed in a car---Purpose of such bag to provide further protection to driver of car in addition to primary protection provided by its seat belt---Functions of such bag stated.

(d) Criminal Procedure Code (V of 1898)---

----S. 561-A---Constitution of Pakistan, Art. 199---Initiation of criminal action or F.I.R.---Not quashable merely on ground of filing of civil suit.

Sarfraz Khan v. The State and 2 others 1996 SCMR 186 rel.

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition---Adequate or alternate remedy, determination of---Test and guidelines for High Court.

The words "adequate remedy" connotes an efficacious, convenient, beneficial, effective and speedy remedy. It should be equally inexpensive and expeditious. To effectively bar the jurisdiction of the High Court under Article 199 of the Constitution the remedy available under the law must be able to accomplish the same purpose which is sought to be achieved trough a petition under Article 199. The other remedy in order to be adequate must be equally convenient, beneficial and effective. The relief afforded by the ordinary law must not be less efficacious, more expensive and cumbersome to achieve as compared to that provided under the Article. This depends on the circumstances of each case.

High Court will have to consider in each case the following test to be applied to determine the adequacy of the relief:--

(i) If the relief available through the alternative remedy in its nature or extent is not what is necessary to give the requisite relief, the alternate remedy is not an "other adequate remedy" within the meaning of Article 199.

(ii) If the relief available through the alternate remedy, in its nature and extent, is what is necessary to give the requisite relief, the "adequacy" of the alternate remedy must further be judged with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternate remedy with the speed, expense or convenience of obtaining it under Article 199. But in making this comparison, those factors must not be taken into account which would themselves alter if the remedy under Article 199 were used as a substitute for the other remedy.

(iii) In practice the following steps may be taken:

(a) Formulate the grievance in the given case as a generalized category;

(b) Formulate the relief that is necessary to redress that category of grievance;

(c) See if the law has prescribed any remedy that can redress that category of grievance in that way and to the required extent;

(d) If such a remedy is prescribed, the law contemplates that resort must be have to that remedy;

(e) If it appears that the machinery established for the purpose of that remedy is not functioning properly, the correct step to take will be a step that is calculated to ensure, as far as lies in the power of the court that that machinery begins to function as it should. It would not be correct to take over the function of that machinery. If the function of another organ is taken over, that other organ will atrophy and the organ that takes over will break down under the strain;

(f) If there is no other remedy that can redress that category of grievance in that way and to the required extent or if there is such a remedy but conditions are attached to it which for a particular category of cases would neutralize or defeat it so as to deprive it of its substance, the court should give the requisite relief under Article. 199.

(g) If there is such other remedy, but there is something so special in the circumstances of a given case that the other remedy which generally adequate, to the relief required for that category of grievance is not adequate to the relief that is essential in the very special category to which that belongs, the court should give the required relief under Article 199.

(h) If the procedure for obtaining the relief by some other proceedings is too cumbersome or the relief cannot be obtained without delay and expense or the delay would make the grant of the relief meaningless, High Court would not hesitate to issue a writ if the party applying for it is found entitled to it, simply because the party could have chosen another course to obtain the relief which is due.

Ibrahim T.M. Ltd. v. Federation of Pakistan PLD 1989 Lah. 47; Allah Ditta v. Muhammad Saeed Vatoo PLD 1961 Lah. 479; Shamas Din and Bros. v. Income-tax and Sales Tax Officer PLD 1959 Lah. 955 and Khaliq Najam Co. v. Sales-Tax Officer PLD 1959 Lah. 915 rel.

(f) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court could not investigate disputed questions of fact---Principles.

Disputed questions of facts cannot be investigated while exercising constitutional jurisdiction.

It is incumbent upon party seeking constitutional remedy to show that such party had a clear legal right and that such right is so clear as not to admit of a reasonable doubt or controversy. High Court will not go into disputed questions of fact in constitutional jurisdiction. This is more so when it is supported by attending circumstances and relevant record. Constitutional jurisdiction of High Court cannot converted into that of an Appellate Court. Disputed questions of fact cannot be entertained or allowed to be re-agitated in writ jurisdiction, when the relevant law provides other forums for the purpose. It follows that finding of fact recorded by Appellate Court below on appraisal of evidence cannot be disturbed in writ jurisdiction. In constitutional jurisdiction, court does not go into a question involving minute details nor can it decide facts of which no foundation is laid, unless it is shown that such controversy is devoid of supporting record or perverse.

The superior courts should not involve themselves into investigations of disputed questions of fact, which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. Controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only by courts having plenary jurisdiction in matter and on such ground constitutional petition is incompetent

M.H. Abidi v. State Life Insurance Corporation 1990 MLD 563; Muhammad Nazim v. Rehana Parveen Begum 1990 MLD 344 and State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd. PLD 1983 SC 280 rel.

(g) Criminal trial---

----Accused would be presumed to be innocent, unless his guilt proved by positive and affirmative evidence led by prosecution---Principles.

In criminal cases, the general rule is that the accused must always be presumed to be innocent and the onus of proving everything essential to the establishment of the offence is on the prosecution. All that may be necessary for the accused is to offer some explanations of the prosecution evidence and if this appears to be reasonable even though not beyond doubt and to be consistent with the innocence of accused, he should be given benefit of it. The proof of the case against accused must depend for its support not upon the absence or want of any explanation on the part of the accused, but upon the positive and affirmative evidence of the guilt that is led by the prosecution to substantiate accusation. If on the facts proved no hypothesis consistent with the innocence of the accused can be suggested, the conviction must be upheld. If however, such facts can be reconciled with any reasonable hypothesis compatible with the innocence of the accused, the case will have to be treated as one of no evidence and the conviction and sentence will in that case have to be quashed.

PLD 1956 FC 123; AIR 1956 SC 316; Phipson Evidence 7th Ed. page 33; Jagdish Ram v. Mukand Lal 1928 L.763; Hem Chandra De Sarkar v. Amiyabala De Sarkar, 52 C. 121; Muhammad Tahir v. Raghubar Dayal 11 IC 761; Pankjammal v. Secretary of State 40 I.C. 516; Pandurang v. Tukaram 1934 N. 253; Peddi Reddy Fagi Reddi v. Panem Chirinabbi Reddi 56 I.A. 6; Chainta Dasya v. Bhalku Das 1930 C.591; Ganga Ram v. Rulia 2 L.249; Rangavva Hanmappa Bidri v. Sheshappa Bidri 51 B.258; Bishambar Das v. Telu Ram 1934 L.1019; Pokhar Dav v. Thakar Das 1930 L. 213(2); Jadu Nath v. Ramun Mal 1921 L.284; Ruthna Gramany v. Veerabudra Aiyar 21 IC 96; Sita Ram v. Haidar Khan 25 I.C. 138; Makund v. Bahori Lal 3 A. 824; Muhammad Tahir v. Raghubar Dayal 11 LC 76; Hajee Lin v. Mating Ba 5 R. 822; Uttarn Chand Ishwar v. Hakim Muhammad Sharif 1932 L. 417; Taylor and 371, Over v. Harwood (1900) I QB 803; Bindra v. 1934 O.485; Deputy Legal Remembrancer, Behar and Orssa v. Mathukdhari Singh 32 IC 137; Shahzad Khan v. E, 1933 P.513, 515; Wolmintton v. The Director of Public Prosecutions 1935 AC 462; Muhammad Rafi v. E 1933 P. 598; Mohidin Karim v. E 551 IC 849; Gendan Lal v. E. 1930 O.460; Basudeb Mandar v. E 1929 P. 112; Lila Ram v. E 1927 L. 862(2); Surat Singh v.Crown 1923 L.42; Mst. Jahura Bibi v. E 1931 C. 11; Rannum v. E 7 L: 84; Ghauns v. E 7 L.561; Dinarnani Udaipal Ram Twary v. E 98 IC 241; Nur Khan v. E. 1927 O.611; Muzaffar v. E 99 IC 322; Bishambar Nath Baijpai v. E 1925 O.676; Robert Stuart Wanchope v. E 61 C. 168; E. v. Damapala 14 R. 666; Nannhun v. E 165 IC 458; Bai Mani v. Usafali Bhudar 1931 B. 229; Muhammad Luqman v. State PLD 1970 SC 10; Shamoon v. State 1995 SCMR 1377; Wali Muhamamd v. The State 1969 SCMR 612; Khushi Muhammad v. Muhammad Hanif 1980 SCMR 616; Ali Sher v. State PLD 1980 SC 317; Hakim Ali v. State 1971 SCMR 432; Rab Nawaz v. State PLD 1994 SC 858 and Pir Mazharul Haq v. The State through Chief Ehtesab Commissioner, Islamabad PLD 2005 SC 63 rel.

(h) Criminal Procedure Code (V of 1898)---

----S. 561-A---Inherent powers of High Court---Scope---Such powers not exercisable in case of availability of another remedy, rather same meant to meet a lacuna in Cr.P.C., in extraordinary cases---Principles.

It is generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available. Inherent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interest of justice. These powers are as much controlled by principles and precedents as are its express statutory powers.

R.C.P. Guignard v. The State and another PLD 1963 Kar. 868; M.S. Khawaja v. The State PLD 1965 SC 287; The Public Prosecutor v. Ratnavelu Chetty ILR 49 Mad. 525 and Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 rel.

(i) Criminal Procedure Code (V of 1898)---

----Ss. 249-A, 265-K & 561-A---Inherent powers of High Court---Scope---High Court, except in exceptional cases, would not ordinarily quash criminal proceedings in absence of exercise of powers by Trial Court under S. 249-A or 265-K, Cr.P.C.

State v. Asif Ali Zardari 1994 SCMR 798; Muhammad Khalid Mukhtar v. State PLD 1997 SC 275; Emperor v. Nazir Ahmad AIR (32) 1945 PC 18; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Baluchistan PLD 1971 SC 677; Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317; Shashadhar Acharjya v. Sir Charles Tegart AIR 1932 Cal: 229; Muhammad Hussain v. Inspector-General of Police PLD 1967 Lah. 1123; Shamsuddin v. Captain Gauhar Ayyub PLD 1965 SC 496; Crown v. Muhammad Sadiq Niaz PLD 1949 Lah. 562; State of West Bengal v. S. N. Basak AIR 1963 SC 447; Sher Khan and others v. The State 1968 SCMR 62; M. S. Khawaja v. The State PLD 1965 S C 287; Malik Muhammad Tufail v. S.H.O. Police Station Mitha Dar, Karachi (South) and others 1989 SCMR 922 and Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142 rel.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Appellant.

Khalid Anwar, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos. 1 and 2.

Respondents Nos. 4 and 5 in person.

Mudassir Khalid Abbasi, A.A.-G. for Respondent No.6.

Date of hearing: 22nd November, 2010 (Reserved).

SCMR 2011 SUPREME COURT 1836 #

2011 S C M R 1836

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Jawwad S. Khawaja and Mian Saqib Nisar, JJ

ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Railways and others---Appellants

Versus

ABDUL WAHID and others---Respondents

Civil Appeals Nos. 175 to 177 of 2005, decided on 27th October, 2010.

(On appeal from the judgment dated 8-12-2004 passed by High Court of Sindh, Karachi in H.C.As. Nos. 16 to 18 of 2003 respectively).

Per Mian Saqib Nisar, J.

(a) Fatal Accidents Act (XIII of 1855)---

----S. 1--- Fatal accident--- Contributory negligence--- Vicarious liability---Applicability---Railways, responsibility of---Suits filed by legal heirs of deceased were decreed by High Court in their favour---Plea raised by Railway authorities was that on the rule of contributory negligence of deceased, plaintiffs were not entitled to any compensation---Validity---If due to failure of Railways to safeguard against hazard, any accident had occurred, the Railways could not avoid consequences of its negligence on the pretext that victim of accident should have taken due care to save himself and that the rule of "contributory negligence" should so be applied to absolve it from its liability---In such cases, the plea of "contributory negligence" was not available to defence, until and unless through positive and cogent evidence it was established by Railway authorities that all safety measures were fully secured and intact but it was the victim who had been aware of peril breached those measures such as having opened the closed gate or scaling over the fence he/she had met the accident---Such was not the position in the present matter, admittedly the gate was not closed at that time of accident---Present was a case of negligence of Railways, its employees and rule of "contributory negligence" had no nexus thereto---High Court had rightly held Railways to be liable to pay compensation and damages to plaintiffs---Employer in such accidents was vicariously liable for the acts or omission, commission and negligence of his/its employees---Supreme Court declined to interfere in the judgment and decree passed by High Court against Railways---Appeal was dismissed.

Federation of Pakistan v. The Muslim Vehari and Vehniwal Bus Service Ltd. PLD 1955 Lah. 256; Ali Ahsan v. Federation of Pakistan PLD 1959 (W.P.) Lah. 458; Federation of Pakistan v. Ali Ehsan PLD 1967 SC 249; Union of India v. Hindustan Lever Limited AIR 1975 Punjab and Haryana 259; Mercer v. South Eastern and Chatham Railway Companies' Managing Committee 1922 (2) K.B. 549; North-Western Railway v. Kazi Muhammad Hamid Siddiky PLD 1963 (W.P.) Kar. 975; Malik Raza Khan v. Pakistan PLD 1965 (W.P.) Kar. 244; Pakistan through Pakistan Western Railway, Lahore v. Mst. Kakubai PLD 1981 Kar. 667; Mst, Shaukat Jan v. Government of N.-W.F.P. PLD 1982 Pesh. 123; Bengal Provincial Railway v. Gopi Mohan Singh AIR 1914 Cal. 368; Daya Shankar v. B.B. C.I. Ry. Co. AIR 1931 Allahabad 740; Mata Prasad v. Union of India AIR 1978 Allahabad 303; Messrs Yatayt Nigam Udaipur v. Union of India AIR 1983 Rajasthan 17; Punjab Road Transport Board v. Abdul Wahid Usmani and others PLD 1980 Lah. 584; Pakistan Steel Mill Corporation Limited through its Managing Director and Director's Secretary and another v. Nazir Hussain Shah 1990 CLC 515; Sri Manmatha Nath Kuri v. Moulvi Muhammad Mokhlesur Rehman and another PLD 1969 SC 565; Mst. Kamina v. Al-Amin Goods Agency 1992 SCMR 1715; Pakistan Steel Mills Corporation Ltd. v. Malik Abdul Habib 1993 SCMR 848 and Pakistan and others v. Haji Abdul Razzaque 2005 SCMR 587 ref.

(b) Fatal Accidents Act (XIII of 1855)---

----S. 1---Fatal accident---Age of deceased---Determining factors---Presumption---When a person has surmounted his teenage, and early youth and enters into his practical life by joining an employment or a business etc. it can be legitimately expected that such person would complete his inning by attaining the age of his normal retirement from such practical life, meaning thereby, that such person remains engaged in some gainful activity till the time he in the ordinary course, is mentally and physically fit and capable---Such an age on the touchstone of "reasonable standard" can be termed to be somewhat around sixty five to seventy years.

Husan Jehan v. Islamic Republic of Pakistan through Secretary, Ministry of Defence, Islamabad and 2 others 2005 MLD 752; Mst. Farzana Shabbir and others v. Islamic Republic of Pakistan through Secretary Ministry of Defence and others 2005 MLD 401; Baby Mehek alias Sakeena and 4 others v. Miss Aisha Qayyum and 2 others 2006 MLD 468; Mushtari v. Islamic Republic of Pakistan through Secretary, Ministry of Planning and Development, Islamabad and 2 others 2006 MLD 19 and Amna Bibi and 3 others v. Karachi Transport Corporation through Chairman and 2 others 2007 MLD 195 rel.

Per Jawwad S. Khawaja, J. agreeing

----S. 1---Law of tort---Object, purpose and scope---Court, duty of---Central objective of tort law is to compensate plaintiffs for harms which they have suffered---Monetary compensation under Fatal Accidents Act, 1855, has the core purpose of attempting to fill the void, at least partially, left by the death of victim of the accident---Second core purpose of tort law is to discourage potentially harmful behavior on the part of individuals or corporate entities throughout society in general---Tort law, in a number of countries has operated as a tool for enforcing good governance and responsible behaviour on account of its deterrent effect against unlawful and negligent actions of tort feasors---Corporations such as the Railways, must implement and strictly adhere to guidelines and safety precautions expressed in various statutory enactments and case-law---Failure of corporations in observing such legal precedent, in future, may consider holding them accountable through award of exemplary damages---Promotion of law of torts is vital and courts can within the constraints of their available resources endeavour to facilitate the utilization and development of trot law by delivering expeditious adjudication.

Niaz and others v. Abdul Sattar and others PLD 2006 SC 432; Overseas Pakistani Foundation v. Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah and another 2007 SCMR 569 and Punjab Road Transport Corporation v. Zahida Afzal 2006 SCMR 207 rel.

(d) Fatal Accidents Act (XIII of 1855)---

----S. 1---Suit for damages---Delay in decision---Effect---Damages can never be a substitute for a deceased father, husband or son---If damages are awarded promptly, the same can lessen burdens and travails which a family has to bear after losing its bread earner in an abrupt and unexpected manner---Delay in such matters, in many ways proves the oft repeated adage that justice delayed is justice denied.

(e) Fatal Accidents Act (XIII of 1855)---

----S. 1---Exemplary or punitive damages---Deterrent effect--- Scope--- If consequences of negligent conduct are made more expensive and financially painful in terms of actual damages or the threat thereof, such tortious conduct is likely to be deterred---Court can particularly in cases of egregious conduct award exemplary or punitive damages---Such damages can go beyond the amount meant for compensation, in order to enforce deterrent effect of tort actions---Such mechanism has been used by courts in other common law jurisdictions abroad to positive effect---Scope of exemplary damages may, however, need to be limited to exceptional circumstances because the primary objective of tort actions is to compensate a plaintiff---It is only as a secondary and incidental purpose that society generally and future tort feasors and potential defendants in tort action in particular are meant to be deterred.

Lord Devlin in an English's case [Rookes v. Barnard (1964) AC 1129 rel.

M. Abbas Mirza, Advocate Supreme Court for Appellants (in all cases).

Nasir Maqsood, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in all cases).

Date of hearing: 27th October, 2010.

SCMR 2011 SUPREME COURT 1854 #

2011 S C M R 1854

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Amir Hani Muslim JJ

Messrs SILK BANK LIMITED---Petitioner

Versus

Qazi EHTISHAMUL HAQ and others---Respondents

Civil Petition No. 484-K of 2010, decided on 23rd February, 2011.

(On appeal from the judgment dated 22-5-2010 of the High Court of Sindh at Karachi passed in First Appeal No. 42 of 2009).

(a) Civil Procedure Code (V of 1908)---

----S. 12(2)---Judgment, setting aside of---Principle---Judgment and decree of a court can only be assailed before that court, when aggrieved party seeks to have it set aside on the ground that either the party was not served or that the same was obtained through misrepresentation, fraud etc.

(b) Civil Procedure Code (V of 1908)---

----S. 12(2)---Judgment, setting aside of---Forum---First appeal was allowed by High Court and judgment and decree passed by Banking Court was varied by enhancing the claim of bank along with cost of funds by way of sale of mortgaged properties of defendants---On application under S. 12(2), C.P.C., filed by defendants, Banking Court set aside the judgment passed by High Court in favour of bank---Validity---Judgment and decree passed by High Court attained finality and that of Banking Court merged therein, therefore, proper forum for assailing such decree was High Court and not Banking Court---Judgment and decree passed by High Court in exercise of appellate jurisdiction was set aside and if defendant would file application under S.12(2), C.P.C. the same was to be decided by High Court---Appeal was allowed accordingly.

Nafis Ahmed Siddiqui, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Petitioner.

Khalique Ahmad, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Respondent No. 2.

Nemo for Respondents Nos. 1 and 3.

Date of hearing: 23rd February, 2011.

SCMR 2011 SUPREME COURT 1856 #

2011 S C M R 1856

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

PROVINCE OF PUNJAB through District Coordination Officer, Okara and others---Appellants

Versus

MARKET COMMITTEE, OKARA through Chairman/Secretary---Respondent

Civil Appeals Nos. 400 and 401 of 2006, decided on 21st July, 2011.

(On appeal from the order dated 31-5-2005 passed by Lahore High Court, Lahore in W.Ps. Nos. 568 of 2005 and 8347 of 2004).

(a) Punjab Agriculture Produce Markets Ordinance (XXIII of 1978)---

----Ss. 20 & 21---West Pakistan Urban Immovable Property Tax Act (V of 1958), S. 4(b)(ii)---General Clauses Act (X of 1897), S.3(28)---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider whether a "market committee" was a local authority and thus could claim exemption from payment of property tax for the given period.

(b) General Clauses Act (X of 1897)---

----S. 3---Interpretation of words/expressions---Principle---When definition of any word/expression is not provided in the statute concerned, then in such an eventuality the word/expression used in a statute must be construed in terms of General Clauses Act, 1897.

----Ss. 20 & 21---West Pakistan Urban Immovable Property Tax Act (V of 1958), S. 4(b)(ii)---General Clauses Act (X of 1897), S. 3(28)---Market committee, a local authority---Determining criteria---Urban immovable property tax---Exemption---Authorities raised demand for recovery of property tax against the Market Committee constituted under the provisions of Punjab Agriculture Produce Markets Ordinance, 1978---High Court in exercise of constitutional jurisdiction declared that the Market Committee enjoyed exemption in terms of S.4(b)(ii) of West Pakistan Urban Immovable Property Tax Act, 1958---Validity---In order to qualify as a "local authority" a body/institution should have a juristic personality distinct from its members; it should have perpetual succession and a common seal and may sue and be sued in its corporate name; it should exercise its authority and perform its functions within a defined territory; such body should be charged with functions of self-government and have the power to make its bye-laws; it should have empowerment to impose fees and taxes and to raise, maintain and administer a fund of its own---When such characteristics were pre-dominantly and substantially possessed by a body/institution, the same was a "local authority" in terms of law---All powers and attributes provided in Punjab Agriculture Produce Markets Ordinance, 1978, when put together had qualified the "Market Committee" to be a local authority in terms of S. 3(28) of General Clauses Act, 1897, and thus entitled to exemption from property tax as envisaged by S.4(b)(ii) of West Pakistan Urban Immovable Property Tax Act, 1958---Supreme Court declined to interfere in the judgment passed by High Court---Appeal was dismissed.

Market Committee, Chichawatni District Sahiwal through its Chairman v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 3 others 1991 CLC 118 distinguished.

The Deputy Managing Director, National Bank of Pakistan, Principal Officer, Jinnah Avenue Dacca v. Ataul Huq PLD 1965 SC 201; Karachi Development Authority v. Province of Sindh through the Secretary, Excise and Taxation Department, Karachi and 4 others PLD 1977 Kar. 152; Commissioner of Income Tax, Lahore v. Chief Secretary, Government of the Punjab, Lahore 1981 PTD 66; Chief Secretary, Government of the Punjab, Lahore v. Commissioner of Income Tax, Lahore Zone, Lahore 1976 PTD 56 and Union of India and others v. R.C. Jain and others AIR 1981 SC 951 rel.

Mudassar Khalid Abbasi, A.A.-G. for Appellants (in both appeals).

Arshad Ali Chohan, Advocate Supreme Court, Ameen Watto, Secretary, Market Committee, Okara and Aslam Javed, Secretary, Market Committee, Arifwala for Respondents (in both appeals).

Date of hearing: 21st July, 2011.

SCMR 2011 SUPREME COURT 1864 #

2011 S C M R 1864

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

EXECUTIVE DISTRICT OFFICER (REVENUE), DISTRICT KHUSHAB AT JAUHARABAD and others---Appellants

Versus

IJAZ HUSSAIN and another---Respondents

Civil Appeal No. 259-L of 2009, decided on 14th July, 2011.

(Against the judgment dated 7-7-2008 passed by Lahore High Court, Lahore in W.P. No. 9415 of 2006).

(a) Constitution of Pakistan---

----Preamble---Foundation of Constitution---Scope---Principle of trichotomy of power is one of the foundational values of Constitution of Pakistan.

Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 rel.

(b) Punjab Civil Servants Act (VIII of 1974)---

----S. 4---Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, R.17---Constitution of Pakistan, Preamble---Recruitment, process of---Policy matter---Academic qualification and interview marks---Ratio---Trichotomy of power---Scope---Respondents were unsuccessful in selection of Patwaris and assailed process of selection on the ground that recruitment policy was defective as it had reserved 60% marks for academic qualification and 40% for interview---High Court, in exercise of constitutional jurisdiction directed the Provincial Government to amend the recruitment policy and marks for interview should not exceed 25 % of the total marks---Authorities contended that High Court could not have issued directions to amend recruitment policy as such power fell within policy making domain of the executive authority---Validity---Recruitment policy was framed by Provincial Government as part of delegated legislation and its provisions could not have been struck down on vague considerations of being "unreasonable" or likely to be misused---Presumption was that those who exercise such powers would have done it in a bona fide manner and if such power was exercised in a mala fide manner, it was the particular mala fide act which could be challenged and struck down---Provisions did not become unconstitutional, violative of fundamental rights or unreasonable simply because it could be abused because any provisions of law could be misused if the wielder of power so intended---Framing of recruitment policy and rules thereunder, fell in the executive domain---Constitution of Pakistan was based on the principle of trichotomy of powers where legislature was vested with the functions of law making, the executive with its enforcement and judiciary of interpreting the law---Courts could neither assume the role of policy maker nor that of a law maker, therefore, to such extent the judgment passed by High Court was set aside by Supreme Court---Appeal was allowed.

Lila Dhar v. State of Rajasthan and others AIR 1981 SC 1777 and Ashok Kumar Yadav v. State of Haryana AIR 1987 SC 454 ref.

Azeem Malik, Additional A.-G. Punjab for Appellants.

Respondent No.1 in person.

Date of hearing: 14th July, 2011.

SCMR 2011 SUPREME COURT 1871 #

2011 S C M R 1871

[Supreme Court of Pakistan]

Present: Javed Iqbal and Jawwad S. Khawaja, JJ

MUHAMMAD AZAM---Appellant

Versus

MUHAMMAD TUFAIL and others---Respondents

Civil Appeals Nos. 653 and 656 of 2008, decided on 2nd November, 2010.

(On appeal from the judgment dated 17-1-2007 and 6-3-2007 of the Punjab Service Tribunal, Lahore passed in Appeals Nos. 2328 and 2899 of 2006 respectively).

(a) Punjab Civil Servants Act (VIII of 1974)---

----S.8---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan, Art. 212(3)---Promotion---Appeal to Service Tribunal---Acceptance of appeal of respondent---Plea that without challenging original order of promotion of petitioner, respondent's appeal was liable to be dismissed; that respondent's appeal was not competent against findings of having found petitioner fit for promotion as same was not within jurisdiction of Service Tribunal; and that before passing impugned order, Service Tribunal had not granted opportunity of hearing to petitioner---Supreme Court granted leave to appeal to consider inter alia questions raised by petitioner.

Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539; Zafar Iqbal v. MGO., MGO Branch 1995 SCMR 881; Ghulam Jillani v. Government of Punjab 2001 PLC (C.S.) 157 and Muhammad Iqbal v. Exe. DOR (Rev.) 2007 SCMR 682 ref.

(b) Punjab Revenue Department (Revenue Administration Posts) Rules, 1990---

----Sched. Cols. Nos. 6, 7 & 10---West Pakistan Kanungo Services (Northern Zones) Rules, 1964---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan, Art. 212(3)---Promotion---Promotion of appellant-Patwari as Kanungo on 4-8-1990 on merits after qualifying departmental examination of Kanungo---Departmental appeal of respondent-Patwari, not having passed such examination, accepted by Board of Revenue directing placement of his case before Departmental Promotion Committee---Such Committee vide order dated 3-2-2005 recommended pro forma promotion to respondent w.e.f. 4-8-1990---Appeal filed against respondent's promotion accepted by Service Tribunal---Validity---Passing of such examination along with successful training was sine qua non for promotion as Kanungo, but not merely a formality---Respondent had not passed such examination, thus, his case was not considered by Committee during five years w.e.f. 1990 to 1995 --- Respondent had not challenged proceedings of Committee held during said five years---Respondent had not challenged seniority list of Kanungo prepared on basis of recommendations of such Committee---Respondent could not be granted pro forma promotion as seniority list had attained finality for not being challenged by him---Amendments made in Punjab Revenue Department (Revenue Administration Posts) Rules, 1990 through Notification No.SOR-II-1-15/93, dated 25-2-1994 deleting Entries at Sr. Nos.1 to 3 in Column No. 10 of Schedule thereof had in fact deleted condition of passing of such examination for promotion purposes, but remained such condition for Confirmation as Kanungo---After such amendment, there would be no examination for promotion to post of Kanungo---Respondent after having qualified such examination was promoted as Kanungo on 2-8-1990 when the Rules were in force---Respondent was not entitled for pro forma promotion w.e.f. 4-8-1990---Supreme Court dismissed respondent's appeal in circumstances.

----Promotion---No vested right would exist in promotion or rules determining eligibility for promotion.

Government of Punjab v. Muhammad Awais Shahid 1991 SCMR 696 and Muhammad Iqbal v. Saeeda Bano 1991 SCMR 1559 rel.

(d) Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Promotion---Appeal---Jurisdiction of Service Tribunal---Scope---Service Tribunal had no jurisdiction to dilate upon question of fitness of a civil servant as question of eligibility for promotion would not fall within its domain.

Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539 rel.

(e) Punjab Service Tribunals Act (IX of 1974)---

----S.4---Promotion--- Appeal---Jurisdiction of Service Tribunal---Scope---Interpretation of notification, rules and other relevant material concerning promotion of civil servant would fall within jurisdictional domain of Service Tribunal.

Mehdi Khan Chauhan, Advocate Supreme Court for Appellant.

Shahid Zaheer Syed, Advocate Supreme Court for Respondent No.1.

Respondents Nos. 2 and 3 ex parte.

Date of hearing: 2nd November, 2010.

SCMR 2011 SUPREME COURT 1880 #

2011 S C M R 1880

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Mehmood Akhtar Shahid Siddiqui and Sarmad Jalal Osmany, JJ

TARIQ MEHMOOD---Appellant

Versus

THE STATE---Respondent

Criminal M.A. No. 282 of 2011 in Criminal Appeal No. 18 of 2009 out of Criminal Petition No. 424 of 2008, decided on 30th June, 2011.

(Against the judgment dated 14-10-2008 passed by Lahore High Court, Lahore in Criminal Appeal No. 1973 of 2002).

Penal Code (XLV of 1860)---

----Ss. 302(b), 309, 310 & 311---Criminal Procedure Code (V of 1898), S.345(5)---Qatl-e-amd (double murder case)---Fasad-fil-Arz, principle of---Applicability---Sentence, reduction in---Compounding of offence---Accused committed murder of two persons on a petty matter thus Trial Court convicted and sentenced him to death as Ta'zir which was maintained by High Court---During pendency of appeal before Supreme Court accused filed application as he had entered into compromise with legal heirs of deceased persons---Validity---Intention of accused was to do away with one deceased only with whom he had previously exchanged hot words---Subsequent death of other deceased might have been caused during scuffle between the two---Obviously the accused was running for his life because he knew that if he was apprehended by complainant party he would not be spared as he had already done to death one person---Supreme Court declined to hold the incident as either brutal or gruesome or shocking to uphold death sentence awarded to accused particularly when he had compromised the matter with legal heirs of deceased---Nothing was available on record to establish that accused had any criminal record---Supreme Court, while dismissing appeal and the application for compromise, maintained conviction awarded to accused and converted death sentence into imprisonment for life.

Mushtaq and 3 others v. The State PLD 2008 SC 1 and Abdul Jabbar and another v. The State 2010 SCMR 1231 distinguished.

Naseem Akhtar and another v. The State PLD 2010 SC 938 rel.

Raja Ghazanfar Ali, Advocate Supreme Court for Appellant.

Ch. Zubair Ahmed Farooq, A.P.-G. for the State.

Date of hearing: 30th June, 2011.

SCMR 2011 SUPREME COURT 1886 #

2011 S C M R 1886

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Muhammad Sair Ali, JJ

TABASSUM SHAHZAD---Petitioner

Versus

I.S.I. and others---Respondents

C.P. No. 1119-L of 2010, decided on 17th August, 2011.

(On appeal against the judgment dated 24-4-2010 passed by Federal Service Tribunal, Islamabad in Appeal No. 46(R)(CS) of 2009).

(a) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 2(b) & 5---Constitution of Pakistan, Art. 212(3)---Dismissal from service---Misconduct---Departmental proceedings---Verification by Inquiry Officer---Civil servant remained absent without leave and medical certificate produced by him was found by Inquiry Committee to be forged and bogus; therefore, he was dismissed from service---Order of dismissal from service was maintained by Service Tribunal---Plea raised by civil servant was that one of the members of inquiry committee for mala fide reasons reduced himself to the level of a witness in the inquiry when he visited concerned hospital to verify about genuineness of certificate produced by civil servant---Validity---Held, it was for inquiry committee to decide how best to verify correctness of medical certificate in question---Civil servant, in his petition, did not level any personal allegation of mala fides against any member of the committee which could persuade the court to concluded that the Committee was motivated by malice in making report against civil servant---Inquiry report and penalty awarded to civil servant was not arbitrary or against relevant rules and law declared---Civil servant failed to raise any question of law of public importance within the meaning of Article 212(3) of the Constitution to warrant interference---Leave to appeal was refused.

Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 SCMR 802; Muhammad Zaheer Khan v. Government of Pakistan through Secretary, Establishment and others 2010 PLC (C.S.) 559; Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another 19933 SCMR 1440; Allah Yar v. General Manager, Railways Headquarters, Lahore and another 2001 SCMR 256; Najam-uz-Zaman and others v. Engineer-in-Chief, G.H.Q., Rawalpindi and 2 others 2005 SCMR 1802; Managing Director, NBF, Islamabad and 2 others v. Muhammad Arif Raja PLD 2006 SC 175 and Government of Pakistan through Secretary M/o. Finance and others v. Asif Ali and others 2006 SCMR 1005 ref.

(b) Mala fides---

----Question of mala fide---Proof---Malice and mala fide are questions of fact which have to be proved by leading evidence, in absence of which no adverse presumption can be drawn regarding proceedings initiated under the law and order passed by competent authority---Mere vague allegation of mala fide would be of no avail.

Federation of Pakistan v. Saeed Ahmad Khan and others PLD 1974 SC 151 rel.

Asif Nazir Awan, Advocate Supreme Court for Petitioner.

M. Naseem Kashmiri, D.A.-G., Malik Mushtaq Ahmed Awan, D.-A.-G. and A.H. Masood, Advocate-on-Record for Respondents.

Date of hearing: 17th August, 2011.

SCMR 2011 SUPREME COURT 1893 #

2011 S C M R 1893

[Supreme Court of Pakistan]

Present: Javed Iqbal and Anwar Zaheer Jamali, JJ

MUHAMMAD ZAHOOR and 3 others---Petitioners

Versus

THE STATE---Respondent

Criminal Petitions Nos. 177 to 180 of 2011, decided on 18th May, 2011.

(On appeal from the order dated 28-3-2011 passed by the High Court of Sindh, Karachi in Criminal Bail Applications Nos. 256 to 259 of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 409/420/468/471/109---Prevention of Corruption Act (II of 1947), S. 5---Constitution of Pakistan, Art. 185(3)---Criminal breach of trust, cheating, forgery and abetment---Bail, refusal of---Accused persons allegedly fixed exorbitant price of land on the basis of fake report, which land was purchased by National Insurance Corporation---Validity---Letter of revenue authorities, on the basis of which price was determined found to be a fictitious document---Handwriting expert's opinion that signatures of revenue authority were not genuine could be considered for the purpose of examination as to whether a prima facie case was made out or not---No analysis was made out in the report regarding prevalent market price in the vicinity and any past transaction made in that regard---Members of Managing Committee were held responsible for causing loss to the Corporation as they did not act in good faith with bona fide intention because land in question was valued at very exorbitant rate thus substantial loss had been caused to public exchequer---High Court had tentatively appreciated evidence in accordance with material available and had rightly arrived at the conclusion that prima facie case was made out against accused person---Supreme Court declined to interfere in the order passed by High Court and bail was refused---Petition was dismissed.

Abdul Haq v. The State 1979 SCMR 254; Ghulam Nabi v. The State NLR 1978 Cri. 328; Sultan Khan v. Amir Khan PLD 1977 SC 642; Haq Nawaz v. The State 1969 PCr.LJ 358; Haq Nawaz v. The State 1969 SCMR 174; Allah Diwaya v. The State PLD 1969 SC 98; 1969 PCr.LJ 415; 1969 SCMR 202; Zaro v. The State 1974 SCMR 11 and Tufail v. State 1986 SCMR 1504 ref.

Syed Iftikhar Hussain Gilani, Senior Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record for Petitioners.

K.K. Agha, Additional A.-G., Qaisar Musud, Deputy Director, Khalid Jamil, A.D. and Bashir Ahmad Sh. AD for Respondent (in all cases).

Date of hearing: 18th May, 2011.

SCMR 2011 SUPREME COURT 1900 #

2011 S C M R 1900

[Supreme Court of Pakistan]

Present: Mehmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

MUHAMMAD SIDDIQUE and another---Petitioners

Versus

THE STATE---Respondent

Jail Petition No. 101 of 2011, decided on 4th August, 2011.

(Against the judgment dated 19-1-2011 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No.318 of 2008 and Murder Reference No.36/RWP of 2008).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Benefit of doubt---Innocence of one accused---Effect---If one of the accused persons was, at different stages of the case deemed by complainant to be innocent then his implication by complainant during trial reflected adversely upon complainant party's veracity and also reacted against correctness of the allegations levelled against co-accused---Recovery of weapons of offence from the possession of accused persons during investigation was inconsequential---Supreme Court finding it to be in the interest of justice to reappraise the evidence against accused persons, leave to appeal was granted.

Mir Muhammad Ghufran Khurshid Imtiazi, Advocate Supreme Court for Petitioners.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab for the State.

SCMR 2011 SUPREME COURT 1901 #

2011 S C M R 1901

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mehmood Akhtar Shahid Siddiqui JJ

PAKISTAN RED CRESCENT SOCIETY, PUNJAB PROVINCIAL BRANCH---Appellant

Versus

ZIA ULLAH KHAN NIAZI---Respondent

Civil Appeal No. 314-L of 2010, decided on 19th July, 2011.

(On appeal from the judgment dated 30-12-2009 passed by the Federal Service Tribunal, Lahore in Appeal No.120(L)CE of 2005).

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S.10---Pakistan Red Crescent Society Act (XV of 1920), S.4---Service Tribunals Act (LXX of 1973), S.4---Appeal---Maintainability---Employee of Pakistan Red Crescent Society---Jurisdiction of Service Tribunal--- Determination--- Phrase "in accordance with law"---Applicability---Case was remanded to Service Tribunal for decision afresh in accordance with law and Service Tribunal without determining the question of jurisdiction reinstated the employee in service---Validity---Service Tribunal passed the judgment merely because Supreme Court had remanded the case to it for deciding it "in accordance with law" and misdirected itself in deciding the question of jurisdiction---Employee was not a civil servant who could agitate his grievance by way of appeal before Service Tribunal---Supreme Court set aside the judgment passed by Service Tribunal---Appeal was allowed.

Ziaullah Khan Niazi v. Chairman Pakistan Red Crescent Society 2004 SCMR 189 at page 191; Pakistan Red Crescent Society v. Nazir Gillani PLD 2005 SC 806 at page 814; Sajjad Hussain Bukhari v. Treasurer of Charitable Endowment for Pakistan 2005 SCMR 65; Muhammad Mubeen us Salam v. Federation of Pakistan PLD 2006 SC 602; Executive Council Allama Iqbal Open University v. M. Tufail Hashmi 2010 SCMR 1484 and Chairman State Life Insurance Corporation v. Hamayun Irfan 2010 SCMR 1495 at page 1503 rel.

Sh. Shahid Waheed, Advocate Supreme Court for Appellant.

M. Hanif Khan Niazi, Advocate Supreme Court for Respondent.

Date of hearing: 19th July, 2011.

SCMR 2011 SUPREME COURT 1906 #

2011 S C M R 1906

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Anwar Zaheer Jamali, JJ

GHULAM MUHAMMAD and others---Appellants

Versus

MUHAMMAD YOUNAS (deceased) through L.Rs. and others---Respondents

Civil Appeal No. 1213 of 2004, decided on 2nd June, 2011.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 12-4-2001 passed in C.R. No. 2068 of 1985).

(a) Specific Relief Act (I of 1877)---

----Ss. 12 & 22---Constitution of Pakistan, Art. 185(3)---Suit for specific performance of agreement of sale of land executed in year 1970---Death of vendor during pendency of suit and impleading of his legal heirs as defendants---Sale of share in suit land by one of defendants in year 1972 in favour of plaintiff pre-empted by subsequent vendee through a decree of court passed in year 1976---Sale of remaining suit land by remaining defendants in favour of subsequent vendee in year 1972 and inclusion of his name in suit as defendant on plaintiff's application---Subsequent vendee's plea that his superior right of pre-emption stood established by such decree, thus, plaintiff's suit under S. 22 of Specific Relief Act, 1877 was not liable to be decreed against subsequent vendee already possessing superior right of pre-emption over suit land---Suit decreed by Trial Court upheld by Appellate Court and in revision by High Court---Validity---Supreme Court granted leave to appeal, inter alia, to consider legal question as to whether right of vendee-plaintiff to enforce agreement of sale through specific performance could be defeated by subsequent vendee by his superior right of pre-emption over suit land.

Hayat Muhammad v. Muhammad Shafi PLD 1977 Lah. 1229 and Nowab Meah v. Syed Ezaz-ud-Din Ahmed PLD 1962 Dacca 655 ref.

(b) Specific Relief Act (I of 1877)---

----Ss. 12 & 22---Suit for specific performance of agreement of sale of land executed in year 1970---Death of vendor during pendency of suit and impleading of his legal heirs as defendants---Sale of share in suit land by one of defendants in year 1972 in favour of plaintiff pre-empted by subsequent vendee through a decree of court passed in year 1976---Sale of remaining suit land by remaining defendants in favour of subsequent vendee in year 1972 and inclusion of his name in suit as defendant---Validity---Subsequent vendee's right of pre-emption over suit land stood established by such decree---Subsequent vendee having right of pre-emption would be able to pre-empt suit sale in favour of plaintiff by filing a suit---Where transaction was liable to be successfully challenged by a subsequent vendee, then in order to avoid multiplicity of suits, passing of decree for specific performance of such agreement would not be equitable---In presence of subsequent vendee's right of pre-emption, plaintiff was not entitled to decree as prayed for---Suit was dismissed in circumstances.

Hahibar Rahaman v. Ali Azahar AIR 1926 Cal. 1237 and (Saheb) Dayal Singh v. Mahabir Singh AIR 1930 All. 166 ref.

Hayat Muhammad v. Muhammad Shafi PLD 1977 Lah. 1229 and Muhammad Yousaf v. Hadayat Ullah 2007 CLC 1 rel.

Nowab Meah v. Syed Ezaz-ud-Din Ahmed PLD 1962 Dacca 655 distinguished.

Sh. Naveed Shahryar, Advocate Supreme Court for Appellants.

Mian Muhammad Abbas, Advocate Supreme Court for Respondents.

Date of hearing: 2nd June, 2011.

SCMR 2011 SUPREME COURT 1912 #

2011 S C M R 1912

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Amir Hani Muslim and Ghulam Rabbani, JJ

Syed TAHIR ABBAS SHAH---Petitioner

Versus

OGDCL through M.D. Head Office, Islamabad and another---Respondents

Civil Petition No. 904 of 2011, decided on 19th August, 2011.

(On appeal from the judgment dated 19-4-2011 in W.P. No.3792 of 2010 passed by the Islamabad High Court, Islamabad).

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil Service--- Statutory rules---Employee of Oil and Gas Development Corporation assailed the order passed against him before High Court in exercise of constitutional jurisdiction---High Court dismissed the petition on the ground that remedy available to the employee was before Service Tribunal---Validity---Employees of Oil and Gas Development Corporation being governed by statutory rules, therefore, for redressal of their grievances, remedy of filing constitutional petition before High Court was available to them and Service Tribunal had no jurisdiction---Conclusion drawn by High Court, directing the employee of Oil and Gas Development Corporation to seek remedy before Service Tribunal was not sustainable---Supreme Court set aside judgment passed by High Court and case was remanded for decision afresh---Appeal was allowed.

Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681; Muhammad Mubeen-us-Salam v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Executive Council Allama Iqbal Open University v. M. Tufail Hashmi 2010 SCMR 1484 and M.D., O.G.D.C.L. and another v. Saleem Ataf and others C.P. No. 22405 of 2010 rel.

2007 PLC (C.S.) 1332; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 and Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir and others PLD 2011 SC 132 ref.

Ahmad Hussain v. The Oil and Gas Development Company Islamabad and others (CPLA No. 2422 of 2010) distinguished.

Abdul Rehman Siddiqui, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Khalil-ur-Rehman Abbasi, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 19th August, 2011.

SCMR 2011 SUPREME COURT 1917 #

2011 S C M R 1917

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Jawwad S. Khawaja, JJ

ASIF RAZA MIR---Petitioner/Appellant

Versus

MUHAMMAD KHURSHID KHAN---Respondent

Civil Petition No. 1385 of 2010 and Civil Appeal No. 557 of 2010, decided on 27th July, 2011.

(Against the consolidated judgment dated 22-6-2010 passed by the Lahore High Court, Rawalpindi Bench in R.S.A. No. 12 of 2008 and C.R. No. 416 of 2008).

(a) Interpretation of documents---

----Contents, substance and context of a document would determine its nature, but not its title, label or heading alone.

Messrs Khanzada Muhammad Abdul Haq Khattaq and Co. v. WAPDA through Chairman and another 1991 SCMR 1436 at 1439 and House Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society and others 1992 SCMR 19 at 27-28 rel.

(b) Specific Relief Act (I of 1877)---

----S. 12---No agreement to sell between parties---Effect---No question of specifically enforcing same would arise.

----S. 54---Agreement to sell, construction of---Scope---Agreement could be construed as a mortgage, charge or security for a loan, if such intention was spelt out from its contents or from its attending circumstances.

Chitty on Contracts, Vol. 1 at 632 (London, Sweet and Maxwell, 28th ed., 1999) rel.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioner/Appellant (in both cases).

Syed Asghar H. Sabzwari, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent (in both cases).

Date of hearing: 27th July, 2011.

SCMR 2011 SUPREME COURT 1924 #

2011 S C M R 1924

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir and Mian Hamid Farooq, JJ

SHAHNAZ PARVEEN---Petitioner

Versus

PTCL through President and others---Respondents

Civil Petition No. 966-L of 2008, decided on 20th November, 2008.

(On appeal from the order dated 30-5-2008 of the Lahore High Court, Lahore passed in L.A. No. 128 of 2008).

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 47(3)---Constitution of Pakistan, Art.212(3)---Option for voluntary separation scheme---Petitioner exercised her option for voluntary separation scheme introduced by the management which was accepted by the management---Subsequently petitioner took the plea that a fraud had been played upon her otherwise she would not have exercised her option---Grievance petition by the petitioner was dismissed by the Labour Court and appeal by the petitioner having also been dismissed---Validity---Question whether the exercise of option by the petitioner was voluntary or otherwise, could not be decided by the Supreme Court being purely a question of fact---Controversy had already been set at rest by the Labour Court as well as the High Court---No question of law of public importance was involved in the case; it was too late to entertain and adjudicate upon the plea taken by the petitioner without there being material to substantiate the same---Petition for leave to appeal being meritless was dismissed and leave to appeal was refused.

Muhammad Iqbal Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 20th November, 2008.

SCMR 2011 SUPREME COURT 1926 #

2011 S C M R 1926

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Asif Saeed Khan Khosa, JJ

MUKHTAR HUSSAIN and others---Appellants

Versus

SOHBAT ALI and another---Respondents

Civil Appeals Nos. 308, 309 and 310 of 2006, decided on 27th July, 2011.

(On appeal from the judgment dated 16-12-2003 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Civil Revisions Nos. 259-D and 260-D of 1999 and 87-D of 2000).

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 13, 16 & 35(1)---Punjab Pre-emption Ordinance (XVIII of 1990), S.36(1)---Punjab Pre-emption Act (I of 1913), S. 8---Pre-emption suit in year 1975---Defendant, on basis of notification issued under S. 8 of Punjab Pre-emption Act, 1913 pleaded non-existence of right of pre-emption qua land acquired by him as affectee/outstee of Mangla Dam---Dismissal of suit in first round of litigation by Trial Court and Appellate Courts and withdrawal of appeal before Supreme Court due to pendency of application under S. 36 of Punjab Pre-emption Ordinance, 1990 before Trial Court seeking fresh decision of suit in terms of such provision---Such application dismissed by Trial Court, but accepted by Appellate Court and upheld by High Court in constitutional petition---Suit decreed by Trial Court in second round of litigation after recording such fresh evidence upheld by Appellate Court, but dismissed in revision by High Court---Plaintiff's plea that such application earlier found to be competent by High Court in constitutional petition could not later on be held to be incompetent by High Court in revision---Validity---Courts below in first round of litigation concurrently found that right of pre-emption qua suit land did not exist at time of its acquisition by defendant and filing of suit by plaintiff---Decision of suit afresh contemplated by S.36(1) and S. 35(1) of Punjab Pre-emption Act, 1991 could not create a right of pre-emption, which did not exist qua suit land at relevant time by operation of law---Suit for pre-emption, if not competent or barred by any law at time of its original institution, could not be treated as competent or maintainable for purposes of a fresh trial and decision under S. 36(1) of Punjab Pre-emption Ordinance, 1990 and S.36(1) of Act, 1991---Supreme Court dismissed appeal in circumstances.

(b) Administration of justice---

----Concession given against law could not be accepted as a valid concession---Principles.

----Ss. 13 & 35---Punjab Pre-emption Ordinance (XVIII of 1990), Ss.13 & 36---Punjab Pre-emption Act (I of 1913), S. 6 --Pre-emption suit in year 1975---Fresh decision of suit sought by plaintiff by filing application under S. 36 of Punjab Pre-emption Ordinance, 1990 in terms thereof---Non-proving of Talb-i-Muwathibat and Talb-i-Ishhad by plaintiff while recording fresh evidence---Validity---Original plaintiff had died on 17-4-1993 before passing of decree for first time on 8-3-1999---Original plaintiff had filed suit at a time when Punjab Pre-emption Act, 1913 was in force, whereunder such suit was not decreeable on account of his death before obtaining any favourable decree---Right of original plaintiff after his death stood transferred to his legal heirs by virtue of S. 16 of Punjab Pre-emption Act, 1991 subject to having made Talb-i-Ishhad before his death---Nothing on record to establish convincingly and conclusively that original plaintiff had actually made such Talb---Plea of original plaintiff in plaint was that defendant was asked for several times to recognize his right of pre-emption and hand over him possession of suit land on payment of its actual price, but he had refused to do so---Defendant in written statement had denied such plea of plaintiff---Plaintiff had not given details of such demand in plaint or evidence---Oral assertion of a witness regarding making of such Talb by original plaintiff would not be preferred over its denial by defendant, when no independent confirmation or verification of such assertion was available on record and name of such witness did not find mention in plaint---Failure to prove making of such Talb by original plaintiff had established non-fulfilment of mandatory requirements of S. 36(2) of Punjab Pre-emption Ordinance, 1990 and S. 35(2) of Punjab Pre-emption Act, 1991 ---Suit was dismissed in circumstances.

Muhammad Ishaq v. Muhammad Sadiq 2007 SCMR 1478 rel.

(d) Punjab Pre-emption Act (IX of 1991)---

----S. 6(a)---Qanun-e-Shahadat (10 of 1984), Art. 133---Pre-emption suit---Plaintiffs claim to be co-sharer in suit property denied by defendant---Proof---Copy of Register Haqdaran Zameen produced by plaintiff not finding mention of his name or his predecessor as co-sharer in suit land---Failure of defendant to cross-examine a plaintiff's witness having deposed orally to the effect that plaintiff was co-sharer in suit land---Validity---Plaintiff had not established such plea through independent or convincing evidence--- Such oral statement of plaintiff's witness could not be taken as conclusive of factum of his being co-sharer in suit land merely due to defendant's failure to cross-examine such witness properly---Suit was dismissed in circumstances.

(e) Constitution of Pakistan---

----Art 185---Appeal to Supreme Court---Scope---Supreme Court while hearing appeal would be seized of whole lis---Law would not debar Supreme Court from noticing or finding relevant fatal defects and deficiencies in appellant's case.

Jasraj Indersingh v. Hemraj Multanchand AIR 1977 SC 1011 rel.

Malik Muhammad Qayyum, Senior Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Appellants (in all appeals).

Gul Zarin Kiyani, Senior Advocate Supreme Court for Respondents Nos. 1 and 2 (in C.As. Nos. 308 and 309 of 2006).

Respondent No. 3 ex parte (in C.As. Nos.308 and 309 of 2006).

Respondents Nos. 1 to 7 ex parte (in C.A. No.310 of 2006).

Date of hearing: 27th July, 2011.

SCMR 2011 SUPREME COURT 1935 #

2011 S C M R 1935

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

AZMATULLAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No. 17-L of 2011, decided on 16th May, 2011.

(On appeal from the judgment dated 1-12-2010 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.2 of 2010 in Criminal Appeal No. 826 of 2010).

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 302(b)/148---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd and rioting armed with deadly weapon---Suspension of sentence---Extra judicial confession---Principle of consistency---Conviction of accused was primarily based on extra judicial confession of principal accused, which he made before two prosecution witnesses---Principal accused and three other co-accused had been released on bail by way of suspending their sentences---Effect---Accused was prima facie on better footing as he had neither caused any injury to deceased nor had any motive to participate in the occurrence---Recovery of .30 bore pistol shown to have been recovered from the possession of accused during investigation was of no consequence---Supreme Court suspended the sentence awarded to accused by Trial Court and he was released on bail.

Zafar Iqbal Chohan, Advocate Supreme Court for Petitioner.

C.M. Lateef, Advocate-on-Record for Respondent No.2.

Asjad Javed Gural, Additional P.-G. for the State.

Date of hearing: 16th May, 2011.

SCMR 2011 SUPREME COURT 1937 #

2011 S C M R 1937

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

Rana SHAHID AHMAD KHAN---Appellant

Versus

TANVEER AHMED and others---Respondents

Criminal Appeal No.6 of 2010, decided on 5th August, 2011.

(On appeal from the judgment dated 27-7-2009 passed by the Islamabad High Court, Islamabad in Writ Petition No.760-Q of 2009).

(a) Penal Code (XLV of 1860)---

----S.489-F---Constitution of Pakistan, Art. 185(3)---Dishonestly issuing a bank cheque---Leave to appeal was granted by Supreme Court to consider the contention of complainant that while deciding application for quashment of proceedings---High Court had travelled beyond the limited scope of the provision of law as issuance of dishonoured cheque by accused was admitted position, therefore, for extraneous consideration, quashment of proceedings was not justified.

(b) Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), S. 489-F---Quashing of criminal proceedings---Principles---High Court in exercise of powers under S. 561-A, Cr.P.C. can quash criminal proceedings even at initial stage, if allegations levelled in F.I.R. or complaint are un-rebutted and no criminal case is made out---High Court may also take into consideration any special circumstance to arrive at a conclusion as to whether prosecution should be allowed to proceed with the case in the interest of justice or there is no possibility of conviction of the accused or admitted facts make out a case of civil nature or malicious prosecution is floating on the record and no helpful purpose would be served in permitting criminal proceedings to continue ---High Court in its power under S. 561-A, Cr.P.C. should ordinarily not interfere with police investigation in a cognizable offence.

Khawaja Nazir Ahmad's case AIR 1945 PC 18 rel.

----S. 489-F---Criminal Procedure Code (V of 1898), S. 561-A---Dishonestly issuing a bank cheque--Quashing of proceedings---High Court in exercise of inherent jurisdiction, quashed the F.I.R. registered against accused at the stage when it was still under investigation---Validity---Investigation of the criminal case was still in progress, parties had taken divergent pleas and allegation levelled therein ex facie made out a criminal offence under which case stood registered--Accused failed to allude to any circumstance or any piece of evidence, which could warrant quashment of the case by invoking provision under S.561-A, Cr.P.C.---Supreme Court set aside the judgment passed by High Court and restored criminal F.I.R. against accused---Appeal was allowed.

Muhammad Mansha v. Station House Officer PLD 2006 SC 598; Col. Shah Siddique v. Muhammad Ashiq 2006 SCMR 276; Hazari Lal v. Rameshwar Prasad AIR 1972 SC 484 and Ghulam Mustafa v. State 2008 SCMR 76 rel.

Sh. Zamir Hussain, Senior Advocate Supreme Court along with Appellant in person.

Altaf Elahi Sh., Senior Advocate Supreme Court along with Respondent No.1 in person.

Date of hearing: 5th August, 2011.

SCMR 2011 SUPREME COURT 1943 #

2011 S C M R 1943

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

MUHAMMAD IQBAL and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Petition No. 369-L of 2011, decided on 20th June, 2011.

(On appeal from the order dated 25-3-2011 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.850-B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/354/452/506/ 337-F(v) / 337-A(i) / 337-A(ii) / 337-L(2) / 324 / 147/148---Qatl-e-amd, criminal assault on woman, trespassing, criminal intimidation, Ghayr-Jaifah Hashimah, Shajjah-i-Khafifah, Shajjah-i-Mudihah, other hurts, attempt to qatl-e-amd and rioting---Bail, grant of---Case of further inquiry---Free fight---Determination of individual liability---Case was that of free fight entailing individual liability and no injury was attributed to any accused---Effect---If no specific injury was attributed to any of the accused persons then it was to be seen as to what individual liability the accused could be saddled with---Investigation of the case had already been finalized and Challan was submitted thus physical custody of accused persons was not required for the purposes of investigation---Case against accused persons called for further inquiry into their guilt within the purview of S. 497(2) Cr.P.C.---Bail was allowed.

Mian Khalid Habib Elahi, Advocate Supreme Court for Petitioners.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab with Shahbaz, S.-I. for the State.

Asif Javed Qureshi, Advocate Supreme Court for the Complainant.

Date of hearing: 20th June, 2011.

SCMR 2011 SUPREME COURT 1945 #

2011 S C M R 1945

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

Malik WAHEED alias ABDUL HAMEED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No. 353-L of 2011, decided on 16th June, 2011.

(On appeal from the order dated 21-4-2011 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 4048/B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/148/149---Qatl-e-amd and rioting armed with deadly weapons---Bail, grant of---Case of further inquiry---Previous enmity---Innocent during investigation---Principle of consistency---Enmity existed between the parties over blood feud and possibility of widening the net could not be ruled out---Accused was not found by police to be involved in the matter, he was declared innocent in successive investigations and nothing was recovered from him---No specific injury was attributed to him and two of the co-accused had already been granted bail and there was nothing on record to indicate that the complainant had filed any petition for cancellation of bail of co-accused---Effect---Question of petitioner's bail required further inquiry and on that score he had made out a case---Bail was allowed.

Mian Ghulam Hussain, Advocate-on-Record for Petitioner.

Mazhar Sher Awan, Additional P.-G. and Israr Hussain, Inspector, Police Station Baghbanpura for the State.

Date of hearing: 16th June, 2011.

SCMR 2011 SUPREME COURT 1947 #

2011 S C M R 1947

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Syed Zawwar Hussain Jaffery, JJ

Rao ZAHID TASAWAR and another---Petitioners

Versus

SECRETARY M/O INTERIOR and others---Respondents

Civil Petitions Nos. 265 and 354 of 2008, decided on 26th May, 2009.

(Against the judgment dated 30-12-2007 passed by Federal Service Tribunal, Islamabad in Appeal No. 233(R)(CS) of 2006).

Constitution of Pakistan---

----Art. 212(3)---Civil service---Leave to appeal was granted by Supreme Court to consider whether after the setting aside of dismissal order, petitioner was entitled to back benefits up to the date of resignation; that whether after submission of resignation, civil servant was entitled to remain absent; that whether the resignation had any effect until it was accepted by the competent authority; and that whether the Service Tribunal, could accept the resignation of an official which otherwise was the competence of the competent Authority.

Mian Ghulam Rasool, Advocate Supreme Court for Petitioners (in C.P. No. 265 of 2008).

Niaz A. Rathore, Advocate Supreme Court for Petitioners (in C.P. No. 354 of 2008).

Niaz A. Rathore, Advocate Supreme Court for Respondents (in C.P. No. 265 of 2008).

Mian Ghulam Rasool, Advocate Supreme Court for Respondents (in C.P. No. 354 of 2008).

Date of hearing: 26th May, 2009.

SCMR 2011 SUPREME COURT 1948 #

2011 S C M R 1948

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Tariq Parvez, JJ

ZAHOOR AHMED---Petitioner

Versus

I.-G. OF POLICE, PUNJAB and others---Respondents

Civil Petition No. 2360 of 2010, decided on 15th April, 2011.

(Against the judgment dated 2-11-2010 of the Lahore High Court, Bahawalpur Bench Bahawalpur passed in I.C.A. No.196/2010/BWP.).

(a) Precedent---

----Case law is dependent upon circumstances.

(b) Criminal Procedure Code (V of 1898)---

----S. 200---Constitution of Pakistan, Art. 185(3)---Private complaint, filing of---Re-investigation of case---Interference by Supreme Court---Petitioner was aggrieved of closure of investigation by police and the same was maintained by High Court---Validity---In appropriate cases Supreme Court might interfere and direct re-investigation of a case---Petitioner did not present sufficient justification for overriding opinion of three Judges of High Court who had held that lodging of private complaint would constitute an adequate alternate remedy to petitioner---Leave to appeal was refused.

Ghulam Sarwar Zardari v. Piyar Ali 2010 SCMR 624 and Muhammad Latif v. Sharifan Bibi 1998 SCMR 666 ref.

Malik Muhammad Aslam, Advocate Supreme Court and Arshad Ali, Ch. Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 15th April, 2011.

SCMR 2011 SUPREME COURT 1950 #

2011 S C M R 1950

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Khilji Arif Hussain, JJ

Messrs PUNJAB SUGAR MILLS---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

C.P. No. 543-L of 2008, decided on 17th June, 2011.

(On appeal against the judgment dated 26-5-2008 passed by Lahore High Court, Lahore in I.C.A. No. 130 of 2008).

Punjab Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)---

----Ss. 3, 7 & 11--- Law Reforms Ordinance (XII of 1972), S. 3(2), proviso---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether on issuance of notification under S.11 of Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963, exempting sugar mills from the provisions of the Ordinance, could High Court hold that provisions of appeal/revision under S. 7 of Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963, were applicable to the petitioner company to debar it from filing Intra Court Appeal; whether in absence of original order or an order arising from proceedings of the nature stated in proviso to S.3(2) of Law Reforms Ordinance, 1972 was petitioner's Intra Court Appeal incompetent under the proviso; and whether judgment passed by of High Court suffered from defect of being a non-speaking judgment.

M.S. Baqir, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 17th June, 2011.

SCMR 2011 SUPREME COURT 1951 #

2011 S C M R 1951

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

DIRECTOR FBR, INTELLIGENCE AND INVESTIGATION DIRECTORATE, LAHORE---Petitioner

Versus

AKHTAR ZAMAN KHAN and others---Respondents

Criminal Petitions Nos. 1061 to 1075-L of 2009, decided on 23rd May, 2011.

(On appeal from the order dated 21-5-2009 of the Lahore High Court, Lahore passed in Criminal Miscellaneous Nos. 4210-BC to 4222-BC of 2009, dated 2-6-2009 in Criminal Miscellaneous No.5090-BC of 2009 and dated 16-6-2009 in Criminal Miscellaneous No.6383-BC of 2009).

Criminal Procedure Code (V of 1898)---

----S.497(5)---Sales Tax Act (VII of 1990), Ss.33(1)(5)(12)(13) & (18)---Constitution of Pakistan, Art. 185(3)---Misappropriation of amount---Petition for cancellation of bail---Time barred petition---No allegation against accused that he misused concession of bail in any manner---Effect---Maximum punishment for the offence with which accused was charged was 5 years and accused had already suffered incarceration of about 18 months---Petition for leave to appeal was barred by 29 days and reasons given in application for condonation of delay were not valid---Supreme Court declined to condone the delay and bail was not cancelled---Leave to appeal was refused.

Barrister Nazir Ahmed Shami, Advocate Supreme Court for Petitioner.

Asjad Javed Ghural, Additional P.-G. for the State.

Date of hearing: 23rd May, 2011.

SCMR 2011 SUPREME COURT 1953 #

2011 S C M R 1953

[Supreme Court of Pakistan]

Present: Tariq Parvez and Amir Hani Muslim, JJ

MUHAMMAD IQBAL alias BALI and another---Petitioners

Versus

THE STATE and others---Respondents

Jail Petition No. 28 of 2011 and Criminal Petition No. 72 of 2011, decided on 28th June, 2011.

(On appeal against the judgment dated 23-12-2010 passed by the Lahore High Court, Lahore, in Criminal Appeal No. 205 of 2005 and Murder Reference No. 204 of 2005).

(a) Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan, Art.185(3)---Qatl-e-amd---Contentions of the petitioners were that the occurrence had taken place on 4-9-2003 at 11-00 a.m. and despite the Police Station being situated at a distance of only about 1/4 k.m. from the place of occurrence, the F.I.R. was lodged on the next day i.e. 5-9-2003 at 10-30 a.m. which reflected adversely on the presence of eye-witnesses; that the complainant party took time for deliberations to involve the petitioner in the offence, because otherwise it was an un-witnessed crime; that if three witnesses were present at the spot, they could have caught hold of the single accused/petitioner, if not before the occurrence, at least after the occurrence and that facts of the case suggest dishonest investigation---Leave to appeal was granted by Supreme Court to reconsider the entire prosecution evidence.

(b) Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan, Art.185(3)---Qatl-e-amd---Petition for enhancement of sentence---Leave having been granted in connected petition and present petition had arisen out of the same judgment, leave to appeal was also granted in the present petition with direction to club both the appeals together.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner (in Jail Petition 28 of 2011).

Muhammad Hassan Bilal, Advocate Supreme Court for Petitioner (in Criminal Peition No. 72 of 2010).

Ahmed Raza Gillani, Additional P.-G. for the State.

Date of hearing: 28th June, 2011.

SCMR 2011 SUPREME COURT 1954 #

2011 S C M R 1954

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Amir Hani Muslim and Ghulam Rabbani, JJ

MUHAMMAD IMRAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.351 of 2010, decided on 17th August, 2011.

(On appeal from the judgment dated 2-8-2010 in Criminal Appeal No.474 of 2009 passed by the Lahore High Court, Lahore).

(a) Control of Narcotic Substances Act (XXV of 1997)---

----S. 2(t)(i)---"Opium"---Meaning---Poppy straw---Definition of "Opium" under S. 2(t)(i) of Control of Narcotic Substances Act, 1997, has been enlarged to include all parts of poppy plant, that is to say, stalk, leaves, flowers in addition to poppy capsules---Poppy straw cannot be excluded from the definition of "opium".

(b) Control of Narcotic Substances Act (XXV of 1997)---

----S. 9--- Narcotic substances--- Proof--- Principles--- Chemical examiner's report---Stringent sentences have been provided under Control of Narcotic Substances Act, 1997 if offence charged against accused is proved within any component of S. 9 of Control of Narcotic Substances Act, 1997---For such reason, Control of Narcotic Substances Act, 1997, has to be construed strictly and relevant provision of law dealing with the procedure as well as furnishing proof like report of expert etc. are to be followed strictly in the interest of justice, otherwise it becomes impossible to hold that total commodity recovered from the possession of accused was narcotics.

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 166---Recovery of narcotics---Reappraisal of evidence---Delay in sending case property---Recovery from other police station---Poast (poppy straw) weighing 97 maunds (3880 Kilograms), packed in 112 nylon and 16 jute sacks, was recovered during raid out of which 500 grams was separated as sample for sending the same to Chemical Examiner---Trial Court convicted the accused and sentenced him to life imprisonment, which was maintained by High Court---Validity---Officials (Anti-Narcotics Force) had acquired spy information about narcotics much before the raid and had enough time to pass on the said information to concerned police station---Officials themselves conducted the raid, made alleged recoveries and report was lodged with concerned police station after about more than ten hours---Recovered articles were kept by police party in its possession for a period of more than ten hours without offering any explanation and the same had created doubt in prosecution case---Complaint as well as recovery memo had mentioned that Poast (poppy straw) was recovered in 112 nylon and 16 Patson (jute) sacks but in recovery memo there was no mention that recovered items were grinded or mixed and then sent to Chemical Examiner---Contents of Chemical Examiner's report indicated that sample taken from recovered articles (poppy heads and straw) was in "grinded and crushed" form, therefore, the same were not the illicit articles, which were recovered---No recovery of poppy straw could be attributed to the accused---Supreme Court set aside the conviction and sentence awarded to accused as prosecution had failed to prove its case---Appeal was allowed.

Muhammad Hashim v. The State PLD 2004 SC 856; Ali Muhammad v. State 2003 SCMR 54 and Kashif Amir v. State PLD 2010 SC 1052 rel.

Khair-ul-Rehman v. The State PLD 2005 Lah. 440 ref.

(d) Criminal trial---

----Witness---Relationship---Principle---Evidence of any witness cannot be disbelieved merely for the reason that he / she has some relationship with the parties.

Khadim Hussain v. State 2010 SCMR 1090; Ashfaq Ahmed v. State 2007 SCMR 641; Shoukat Ali v. The State PLD 2007 SC 93; Muhammad Mansha v. The State 2001 SCMR 199 and Muhammad Ehsan v. State 2006 SCMR 1857 rel.

(e) Control of Narcotic Substances Act (XXV of 1997)---

----S. 29--- Trial--- Presumption of guilt--- Shifting of onus, principle of---Applicability---Duty upon the court has been cast under S.29 of Control of Narcotic Substances Act, 1997 to presume in the trial that accused has committed an offence under Control of Narcotic Substances Act, 1997, unless contrary is proved---Firstly prosecution has to establish the fact that narcotic drugs were secured from the possession of accused---If prosecution proves recovery of narcotics from physical custody of accused, then burden of proving that he was not knowingly in possession of the article is upon the accused.

Maqbool Ellahi Malik, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellant.

Muhammad Irfan Malik, Additional P.-G., Punjab for the State.

Date of hearing: 17th August, 2011.

SCMR 2011 SUPREME COURT 1964 #

2011 S C M R 1964

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

ALI MUHAMMAD---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 205-L of 2011 and Criminal Petition No. 63-L of 2011, decided on 8th July, 2011.

(On appeal from the judgment dated 14-12-2010 of the Lahore High Court, Multan Bench, Multan passed in Criminal Appeal No.345 of 2010).

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S.345---Qatl-e-amd---Compounding of offence---Diyat---Payment to minor---Accused was convicted under S.302(b), P.P.C. and sentenced to imprisonment for life as Tazir---Accused entered into compromise with legal heirs of deceased and share of Diyat of minor son of deceased had already been paid by accused in shape of Defence Savings Certificates---Original Certificates were attached with the report of Sessions Judge, who had felt satisfied that compromise between parties was voluntarily, genuine and complete and interests of minor heir of deceased had been secured and safeguarded---Supreme Court on the basis of report of Sessions Judge, accepted the compromise between parties and acquitted the accused on the basis of compromise---Appeal was allowed.

Shamim-ur-Rehman, Advocate Supreme Court for Petitioner.

Asjad Javaid Ghural, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 8th July, 2011.

SCMR 2011 SUPREME COURT 1966 #

2011 S C M R 1966

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

NASIR ABBAS---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No. 88-L of 2011, decided on 10th August, 2011.

(On appeal from the judgment of the Lahore High Court dated 29-4-2011 passed in Criminal Revision No.430 of 2011).

(a) Maxim---

----"Actus non facit reum nisi mens sit rea"---Meaning and scope---Act does not make a person guilty unless the mind is also guilty---Actus reus in simple parlance is the actual act of committing some offence contrary to the law of land and mens rea is the intent to commit that offence---If either of the elements is missing, the conduct would not attract a penal provision unless it is a case of strict liability wherein absence of mens rea may not be fatal to prosecution.

(b) Penal Code (XLV of 1860)---

----S. 420---Cheating---Mens rea and actus reus---Proof---Pre-requisites---Two ingredients are pre-requisites for trying and punishing an accused under S. 420, P.P.C.---"Cheating dishonestly" is indicative of mens rea, whereas "inducing a person to deliver any property to any person, or to make, alter or destroy" constitutes the actus reus.

----S. 468---Forgery for the purpose of cheating---Mens rea and actus reus---Proof---Pre-requisites---Actus reus under S.468, P.P.C. is making of a false instrument whereas mens rea is three fold i.e. that the document is used to induce someone to accept it as genuine; that the person before whom the document is produced will accept it as genuine and in so doing he will do some act or omit to do something to his own or someone else is damaged or injured or is intended to "support any claim or title" or with an intent to commit fraud; and that the maker of false instrument / document is aware that the document in question is false.

(d) Penal Code (XLV of 1860)---

----S. 471---Using forged document as genuine---Mens rea and actus reus--- Proof--- Pre-requisites--- Actus reus under S. 471, P.P.C. is the act of using a forged document as genuine and mens rea would be his dishonest intent and knowledge that the document is forged.

(e) Penal Code (XLV of 1860)---

----Ss. 420, 468 & 471---Cheating, forgery for the purpose of cheating and using forged document as genuine---Reappraisal of evidence---Forged appointment letter, non-production of---Mens rea and actus reus---Proof---Allegation against accused was that he prepared forged appointment letter and on the basis of the same sought appointment in a hospital where he had been serving for more than two years---Conviction and sentence of five years awarded by Trial Court to accused was maintained by Lower Appellate Court and High Court---Validity---To prove charges under Ss. 420 & 468, P.P.C., the prosecution had to establish that accused had cheated and forged the document---Accused was beneficiary of the document in question and it was considered by department to be a genuine document but prosecution ought to have led evidence to show that accused knew or had reason to believe that the appointment order was a forged one and that he produced it fraudulently with guilty intent---Merely because accused was a beneficiary would not prove that he knew or had reason to believe that it was a forged document---Accused having not been alleged to have forged the document could not be considered to have known that it was a forged document---Existence of mens rea either for forging the document or using it knowingly was not proved---Even the investigating officer who initially investigated the case had declared the accused as innocent---Non-production of original forged document eroded the credibility of prosecution case---Supreme Court set aside conviction and sentence awarded to accused by Trial Court---Appeal was allowed.

Syed Ali v. Nawab Siddiq Ali Khan 1969 SCMR 567; Gopalakrishna Heggade 11 Crl.L.J. Reports 401 and The State v. Rub Dino Sheikh 2003 SCMR 341 rel.

Zafar Iqbal Chohan, Advocate Supreme Court for Appellant.

Mazhar Sher Awan, Additional P.-G. for Respondents.

Date of hearing: 10th August, 2011.

SCMR 2011 SUPREME COURT 1974 #

2011 S C M R 1974

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tassaduq Hussain Jillani and Jawwad S. Khawaja, JJ

MUHAMMAD HANIF and others---Petitioners

Versus

BASHIRAN BIBI and others---Respondents

Civil Petition No. 640-L of 2005, decided on 10th November, 2010.

(On appeal from the order dated 11-2-2005 passed by the Lahore High Court, Lahore in C.R. No.236 of 2005).

Constitution of Pakistan---

----Art.185(3)---Concurrent findings of fact recorded by courts below---Supreme Court could reverse such findings only subject to lawful justification.

Muhammad Saleem Akhtar, Advocate Supreme Court for Petitioners.

Sh. Masud Akhtar, Advocate-on-Record/Advocate Supreme Court for Respondents.

Date of hearing: 10th November, 2010.

SCMR 2011 SUPREME COURT 1978 #

2011 S C M R 1978

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Ghulam Rabbani, JJ

Dr. NIAZ MUHAMMAD MANN through Legal heirs---Petitioners

Versus

SECRETARY (S&R WING)/NOTIFIED OFFICER/ ADMINISTRATOR (RESIDUAL PROPERTY)/ SETTLEMENT COMMISSIONER, PUNJAB (URBAN)

BOARD OF REVENUE, PUNJAB, LAHORE and others---Respondents

Civil Petition No.617-L of 2011, decided on 4th August, 2011.

(Against the judgment dated 24-1-2003 of the Lahore High Court, Lahore, passed in W.P.No.146-R of 2003).

Rehabilitation and Settlement Scheme---

----Part-II, Para. 52---Constitution of Pakistan, Art. 185(3)---Decree of civil court---Entitlement of decree holder---New fact---Scope---Claim of predecessor-in-interest of respondents was based on a judgment and decree dated 10-4-1946, in a pre-emption suit pursuant to which he had deposited decretal amount on 21-5-1946---Application filed by predecessor-in-interest of respondents was allowed by Notified Officer and order was passed to implement the decree---Plea raised by petitioners was that predecessor-in-interest of respondents did not deposit decretal amount and only Zar-e-Panjam was deposited---Validity---Petitioners urged certain facts first time in the constitutional jurisdiction and assailed judgment and decree on which respondents' claim was based on altogether new ground; it was late in the day for petitioners to take up a new ground in constitutional jurisdiction for the first time---Issue raised was a question of fact which had to have been raised before Notified Officer---Notified Officer having considered the submissions made and examined the record had come to the conclusion that decretal amount was duly deposited on 21-5-1946 to which no exception could be taken---Even otherwise if Zar-e-Panjam was added to the amount which according to petitioners was the only amount deposited by predecessor-in-interest of respondents then total amount deposited would be around the decretal amount---Supreme Court declined to interfere in the order passed by Notified Officer and judgment passed by High Court in favour of respondents---Leave to appeal was refused.

Dr. Niaz Muhammad Mann and others v. Sh. Muhammad Ahmad and another 1988 SCMR 1016 and Mst. Kabir-un-Nisa and another v. Settlement Commissioner (Lands), Lahore and 3 others 1975 SCMR 493 ref.

S.M. Naseem, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 4th August, 2011.

SCMR 2011 SUPREME COURT 1986 #

2011 S C M R 1986

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Amir Hani Muslim, JJ

COLLECTOR OF CUSTOMS---Petitioner

Versus

Messrs NATIONAL REFINERY---Respondent

Civil Petition No.482-K of 2011, decided on 8th July, 2011.

(Against the order dated 18-3-2011 passed by High Court of Sindh, Karachi in Spl. C.R.A. No.184 of 2009).

Customs Act (IV of 1969)---

----S. 32(3)---Demand notice issued by Deputy Collector Customs---Department (petitioner's) contention was that there was no illegality in the demand notice issued by Deputy Collector Customs under S.32(3) of Customs Act, 1969---Validity---Demand notice though was not in conformity with the language of S.32(3) of the Customs Act, 1969 still did provide the opportunity to the respondent, therefore, substantial justice had been done---Supreme Court remanded the matter to the Appellate Tribunal to decide the same on merits providing the parties an opportunity to place on record the relevant material---Respondent could challenge the authority of the officer issuing the notice or they take such additional pleas before the Appellate Tribunal within parameters of law.

Raja Muhammad Iqbal, Advocate Supreme Court for Petitioner.

A.S.K. Ghori, Advocate Supreme Court for Respondent.

Date of hearing: 8th July, 2011.

SCMR 2011 SUPREME COURT 1988 #

2011 S C M R 1988

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Mian Saqib Nisar, JJ

CIVIL AVIATION AUTHORITY---Petitioner

Versus

MUHAMMAD YOUSAF AMAF---Respondent

Civil Petition No.1669-L of 2010, decided on 11th July, 2011.

(Against the order dated 15-7-2010 of the Punjab Service Tribunal, Lahore passed in Appeal No.702-L/CS/2004).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Constitution of Pakistan, Art. 212(3)---Appeal---Dismissal from service---Dismissal of appeal on 8-7-2006 for having abated---Grievance petition filed by appellant in Labour Court dismissed on 24-3-2007 for want of prosecution---Appellant's application for restoration of grievance petition dismissed by Labour Court on 11-12-2007---Appellant's application filed on 21-10-2009 in Service Tribunal for recalling order of abatement for having been passed by its Registrar---Order of Tribunal reviving appeal---Validity---Order of abatement had been passed and signed by two Members of Tribunal and not by its Registrar as alleged by appellant---Appellant had not explained as to why he had not challenged orders of Labour Court dismissing his grievance petition and restoration application---Tribunal had no jurisdiction to recall order of abatement on basis .of such application filed after two years of dismissals of appellant's case by Labour Court---Any order made by Tribunal after passing order of abatement of appeal would itself be without jurisdiction or lawful authority---Impugned order of Tribunal reviving appeal was patently without jurisdiction---Supreme Court set aside impugned order and affirmed appellant's dismissal from service for having attained finality.

Qureshi Muhammad Hafeez, Advocate Supreme Court for Petitioner.

Qamar Zaman Qureshi, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Respondent.

Date of hearing: 11th July, 2011.

SCMR 2011 SUPREME COURT 1990 #

2011 S C M R 1990

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ghulam Rabbani, JJ

FIDA HUSSAIN and another---Appellants

Versus

Mst. SAIQA and others---Respondents

Civil Appeal No.8-K of 2011, decided on 10th August, 2011.

(On appeal from the judgment dated 4-10-2010 in Constitution Petition No.1786 of 2010 passed by the High Court of Sindh, Circuit Court Larkana).

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Factual controversy---Recording of statement---Respondent filed constitutional petition before High Court against appellants and police officials for causing harassment to her and her children---Appellants specifically denied allegations of respondent and in support had produced some documents---Matter involved disputed facts which for the purpose of determination required factual inquiry by recording evidence---High Court recorded statement of respondent and appellants were not provided any opportunity to cross-examine her on the basis of her statement and passed the order---Validity---High Court was not to resolve disputed question of facts in exercise of Constitutional jurisdiction under Art. 199 of the Constitution---Orders passed by High Court were not sustainable in the eyes of law, therefore, those were set aside by Supreme Court---Appeal was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---High Court was not to resolve disputed questions of fact in exercise of constitutional jurisdiction under Art. 199 of the Constitution.

Appellants in person.

Respondents ex parte.

Date of hearing: 10th August, 2011.

SCMR 2011 SUPREME COURT 1994 #

2011 S C M R 1994

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

Syed ALI ABBAS---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No.155-L of 2011, decided on 23rd May, 2011.

(On appeal against the order dated 13-1-2011 passed by Lahore High Court, Lahore in Criminal Miscellaneous No. 2813-M of 2010).

Criminal Procedure Code (V of 1898)---

----S. 516-A--- Penal Code (XLV of 1860) S. 420--- Constitution of Pakistan, Art. 185(3)---Cheating and dishonestly inducing delivery of property---Superdari of car---Determination---Car in question was owned by deceased brother of petitioner who was ex-husband of complainant---Car was transferred in the name of petitioner and possession of the car was handed over to complainant after registration of F.I.R.---Petitioner sought possession of car on superdari being owner of the car---Validity---Complainant alleged that petitioner forged divorced deed on behalf of his deceased brother and thereafter got transferred the car in his name---Challan in Trial Court had been submitted, in which car in question was a case property---Supreme Court declined to interfere with custody of the car at such stage and directed that let Trial Court decide about the same after hearing the parties and examining documents/orders on which both the parties relied---During interregnum, Supreme Court let the custody of car remain with the complainant subject to her furnishing of surety bonds---Petition was disposed of accordingly.

Petitioner in person.

Hadiqa Tahira in person along with Syed Azhar Mehdi, brother for Respondent No.2.

Jawad Hassan, Additional A.-G. on Court's call.

Mazhar Sher Awan, Additional P.-G., Rizwan Nawaz, Inspector S.H.O. Police Station Mozang, Lahore, M. Saleem, S.-I., Investigating Officer, Police Station Mozang, Lahore for the State.

Date of hearing: 23rd May, 2011.

SCMR 2011 SUPREME COURT 1997 #

2011 S C M R 1997

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

GUL DIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No.417-L of 2011, decided on 8th July, 2011.

(On appeal from the order dated 12-4-2011 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Criminal Miscellaneous No.566-B of 2011/BWP).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/148/149---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd and rioting with deadly weapons---Bail, grant of---Further inquiry---Counter version---Free fight---Principle of consistency---Occurrence was a sudden and free fight in which participants of both groups sustained injuries---Accused was not attributed any specific role and complainant through supplementary statement alleged that fatal injury was caused by accused---Counter version of the occurrence had been put forward by accused---One of the accused in counter version was allowed bail by Supreme Court---Occurrence was not pre-meditated and it was case of further probe and inquiry---Bail was allowed.

Syed Zahid Hussain Bokhari, Advocate Supreme Court for Petitioner.

Nemo for Respondent No.2.

Asjad Javed Ghural, Additional P.-G. for the State.

Date of hearing: 8th July, 2011.

SCMR 2011 SUPREME COURT 1999 #

2011 S C M R 1999

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mahmood Akhtar Shahid Siddiqui, JJ

MAZHAR HUSSAIN---Petitioner

Versus

GENERAL MANAGER OPERATIONS, RAILWAY HEADQUARTERS and others---Respondents

Civil Petition No. 351-L of 2011, decided on 18th July, 2011.

(On appeal from the judgment dated 3-1-2011 passed by the Federal Service Tribunal, Lahore in Appeal No.265(L) of 2008).

Civil Servants Act (LXXI of 1973)---

----S. 9---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan, Art. 212(3)---Promotion---Dismissal of appeal by Service Tribunal for being time barred---Appellant's plea that though he gave grievance notice to department after five years of his retirement, but department had delayed its enquiry and he filed appeal before Service Tribunal soon after taking of adverse decision by department---Validity---Question whether department was responsible for delay in deciding appellant's grievance petition required consideration, whereupon would depend question whether delay in filing of appeal was condonable or not---Supreme Court set aside impugned judgment, resultantly appeal would be deemed pending before Service Tribunal for its decision.

Petitioner in person.

Hafiz Muhammad Saeed, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Respondents.

Zia-ul-Qamar, D.A.-G. on Court's Call.

Date of hearing: 18th July, 2011.

SCMR 2011 SUPREME COURT 2001 #

2011 S C M R 2001

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ghulam Rabbani, JJ

CHAIRMAN, WAPDA and 3 others---Petitioners

Versus

Syed MUBARAK ALI ZAIDI---Respondents

C.P.L.A. No.435-K of 2010, decided on 8th September, 2010.

Pakistan Water and Power Development Authority Employees Medical Attendance Rules, 1979---

----Rules 2 & 17--- Constitution of Pakistan, Art. 185(3)--- Medical treatment of permanently disabled son of WAPDA employee---WAPDA authorities were under a legal obligation to allow medical treatment, to disabled children of serving or retired employees of WAPDA irrespective of their age---No infirmity or legal defect having been pointed out in order of appellate court below, petition for leave to appeal was dismissed.

Ansari Abdul Latif, Advocate Supreme Court and Abdul Saeed Khan Ghori, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 8th September, 2010.

SCMR 2011 SUPREME COURT 2002 #

2011 S C M R 2002

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

GHULAM MUSTAFA---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No.466-L of 2011, decided on 12th July, 2011.

(On appeal from the order dated 14-6-2011 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.6111-B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 302/397/400/109---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, dacoity, gang of dacoits and abetment---Bail, grant of---Further inquiry---Challan filed in Trial Court---Accused was alleged to be head of a gang of dacoits but investigating officer confirmed that accused had no history of involvement in any case of robbery or dacoity---Accused was father of co-accused who was required by police in a number of cases of dacoity and was fugitive from law---Exaggeration to the extent of accused, in such backdrop, was a possibility which called for further inquiry at bail stage---Investigation of the case had already been finalized and Challan was submitted before Trial Court thus physical custody of accused was not required for purposes of investigation---Bail was allowed.

Ch. Arshad Mahmood, Advocate Supreme Court for Petitioner.

Asjad Javaid Ghural, Additional Prosecutor-General, Punjab with Munir Ahmed, A.S.-I., Police Station Safdarabad, District Sheikhupura for the State.

Naseer-ud-Din Nayyar, Advocate Supreme Court for Respondent No.2.

Date of hearing: 12th July, 2011.

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